United States v. Garcia-Garcia , 354 F. App'x 434 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2259
UNITED STATES OF AMERICA,
Appellee,
v.
SANDRY GARCÍA-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Judge José A. Fusté, U.S. District Judge]
Before
Lipez, Baldock,* and Howard, Circuit Judges.
Rafael Anglada-Lopez for appellant.
Lucas Cass, 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.
December 4, 2009
*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
BALDOCK, Circuit Judge. A jury convicted Defendant-
Appellant Sandry García-García of carjacking in violation of 18
U.S.C. § 2119(2) and of brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The district court denied Defendant’s motions
for acquittal and a new trial and sentenced him to a total of 181
months. On appeal, Defendant first argues the district court
“lacked jurisdiction” because the victim was not driving or a
passenger in the vehicle when the alleged carjacking took place.
Defendant, then, asserts that because he was not properly convicted
of an underlying crime of violence, his firearm conviction cannot
stand for “lack of jurisdiction.” Defendant also claims that
because police only conducted photo lineups, the out-of-court
identifications were impermissibly suggestive.1 Exercising
1
Defendant additionally argues the jury pool was not fairly
representative because he was “tried and convicted by a jury in a
District where 84.1% of all Puerto Rico residents do not command
English ‘very well.’” Brief of Defendant-Appellant at 19. Other
than that bald assertion, Defendant provides no legal or factual
support for such a claim. We, therefore, refuse to consider it.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”).
Regardless, we have repeatedly rejected such a claim. See United
States v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009)
(explaining that an English proficiency requirement for jurors,
including in Puerto Rico, does not violate a defendant’s Sixth
Amendment right to a jury made up of a fair cross section of the
community); United States v. González-Vélez, 466 F.3d 27, 40 (1st
Cir. 2006) (same); United States v. Dubón-Otero, 292 F.3d 1, 17
(1st Cir. 2002)(same).
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jurisdiction under 18 U.S.C. § 1291, we reject his arguments and
affirm the district court.
I.
Because the attack on Federico López-Villafañe (“López”),
which gave rise to Defendant’s present convictions, has already
come before this court in United States v. García-Álvarez, 541 F.3d
8 (1st Cir. 2008), we recite here only the minimum facts necessary
to explain our holding. On the morning of April 12, 2006, López
exited his apartment building and walked towards his car. As he
approached his car, four assailants attacked him. Three of the
assailants covered their faces with t-shirts. At the moment of the
attack, López was standing about a foot and half away from his car.
According to López, two of the four attackers carried nickel-plated
automatic pistols. During the scuffle, the assailants’ t-shirt-
masks fell, revealing their faces. López would later testify that
Defendant hit him with a nickel-plated pistol on his forehead,
face, knees, and shins. The violence escalated. Another attacker
used a rock to beat López while the others held him. They then
forced him into his building’s basement. The attackers duct taped
his feet, hands and eyes. They demanded money, held a gun to his
head, and threatened to kill him if he did not cooperate. They
took his house keys, car keys, and pocket money. At one point, the
attackers went upstairs to López’s apartment to search for money.
Eventually, López fled the basement. A neighbor’s bodyguard
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arrived and called the police. López then saw his car leaving from
the opposite side of the building. He was later taken to a
hospital where he received stitches to his head and legs and,
later, knee surgery.
Three days later, police showed López dozens of
photographs at police headquarters. He marked about twenty, but
did not definitively identify any one picture. A month later,
police showed him four to five sheets, each containing six to nine
photographs. From this array, López identified Defendant as one of
the men who assaulted him and took his car. He also later
identified Defendant in court.
López’s maid, Clemencia Lewis, also encountered the
attackers when they searched his apartment for money. She
testified that she came face-to-face with Defendant, another
assailant pointed a silver gun at her, and a third person stood by.
Lewis further testified Defendant pushed her onto the floor, tied
her hands and feet, and covered her head with a towel. She
identified Defendant as her attacker from a photo lineup the month
following the attack and later identified him again in court.
II.
Defendant first argues the district court lacked
jurisdiction as to his § 2119(2) conviction because López was not
driving or a passenger in his vehicle when the alleged carjacking
took place. “Whoever, with the intent to cause death or serious
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bodily harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce from the
person or presence of another by force and violence or by
intimidation, or attempts to do so,” resulting in “serious bodily
injury,” is guilty of the crime of carjacking punishable by up to
twenty-five years in prison. 18 U.S.C. § 2119(2). Defendant
argues the carjacking statute requires the Government to prove he
intended to cause death or serious bodily harm at the precise
moment he demanded or took control over the car by force or
intimidation. He reasons that because the evidence at trial
indicated he and the other assailants did not drive López’s car
away for twenty to thirty minutes after they beat, bound, and stole
the car keys from López, the Government failed to establish he
possessed the intent to cause death or serious bodily harm at the
time the car was actually stolen.
Defendant’s second argument flows from the first. Any
person who brandishes a firearm during and in relation to any crime
of violence shall be sentenced to a minimum of seven years in
prison. 18 U.S.C. § 924(c)(1)(A)(ii). Defendant claims because
his conviction of a crime of violence was improper for “lack of
jurisdiction,” his § 924(c)(1)(A)(ii) firearm conviction is also
fatally flawed for “lack of jurisdiction.”
We note for the sake of clarity and accuracy Defendant’s
first and second arguments are inherently not jurisdictional.
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Essentially, he asserts the Government did not prove all elements
of the crimes of §§ 2119(2) and 924(c)(1) because it failed, first,
to show he intended to cause death or serious bodily harm at the
moment of the taking of the vehicle and, second, that he was
properly convicted of a crime of violence. Lack of evidence as to
an element of a federal crime, however, means the Government has
not met its burden sufficient to support a conviction, not that the
district court is deprived of jurisdiction to adjudicate the case.
See United States v. González-Mercado, 402 F.3d 294, 301 (1st Cir.
2005) (explaining that the argument that the facts are insufficient
to satisfy the “results in serious bodily injury” element of 18
U.S.C. § 2119(2) did not call into question the district court’s
jurisdiction, but rather the sufficiency of the evidence relating
to the defendant’s guilt). A federal criminal case generally lies
within the subject matter jurisdiction of a district court if the
indictment charges that the defendant committed a crime defined by
Congress as a federal crime. United States v. González, 311 F.3d
440, 442 (1st Cir. 2002). Therefore, unless Congress provided
otherwise, subject matter jurisdiction existed in the present case
because Defendant was charged in district court under §§ 2119(2)
and 924(c)(1), which are federal criminal statutes. See id.
(explaining that unless Congress provided otherwise, subject matter
jurisdiction existed in the case because the defendant was charged
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in district court under 46 U.S.C. § 1903, which is a federal
criminal statute).
Therefore, Defendant’s argument, properly characterized,
challenges the sufficiency of the Government’s evidence, not the
district court’s constitutional or statutory authority to
adjudicate the case against him. Id. Construing his argument as
a challenge to the sufficiency of the evidence supporting his
convictions, we review de novo, “evaluating whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” García-Álvarez, 541 F.3d at
15 (quoting United States v. Meléndez-Torres, 420 F.3d 45, 48-49
(1st Cir. 2005) (internal quotations and citations omitted)).
Even properly construed, Defendant’s argument is
unpersuasive. Last year, we faced a similar argument made by one
of Defendant’s compatriots in this criminal enterprise (who, as it
happens, is Defendant’s uncle). In García-Álvarez, we explained
§ 2119(2) requires the Government to establish the element of
intent to cause death or serious bodily harm at the time the
defendant takes control of the motor vehicle. García-Álvarez, 541
F.3d at 15–16. The victim need not be in close proximity to the
motor vehicle at the time of the taking. Id. at 16. On these
facts, we concluded Defendant and his accomplices gained
constructive control over López’s motor vehicle in the apartment
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building’s basement, when they forced López to turn over his car
keys. Id. (citing United States v. Savarese, 385 F.3d 15, 20 (1st
Cir. 2004)). We also determined that the assailants’ intent to
cause death or serious bodily harm was “more than amply
established” by the assailants’ use of force, including the use of
firearms, and the infliction of serious bodily harm upon López.
Id. Moreover, “it was only upon being threatened with further
violence and even death that López surrendered his car keys.” Id.Given that the attackers’ assault on López left him bleeding and in
need of surgery, we concluded “it is beyond question that the
assailants possessed the requisite intent to cause death or serious
bodily injury.” Id.In ordinary circumstances, “it is axiomatic that new
panels are bound by prior panel decisions in the absence of
supervening authority” from the Supreme Court or an en banc court.
United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007).
Defendant acknowledged this rule at oral argument but seemed to
suggest that extraordinary circumstances existed warranting
reversal of our fellow panel because the García-Álvarez opinion
conflicted with the Supreme Court’s precedent in Holloway v. United
States, 526 U.S. 1, 12 (1999). We understand Holloway to clarify
that “[t]he intent requirement of § 2119 is satisfied when the
Government proves that at the moment the defendant demanded or took
control over the driver’s automobile the defendant possessed the
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intent to seriously harm or kill the driver if necessary to steal
the car (or, alternatively, if unnecessary to steal the car).”
Holloway, 526 U.S. at 12. This is precisely the basis of our
holding in García-Álvarez, in which we determined that at the
moment Defendant and the other assailants “took control” over
López’s car by taking his keys from him at gunpoint, they possessed
the intent to seriously harm or kill him, satisfying § 2119's
intent requirement. Because we find no conflict between García-
Álvarez and Holloway and, therefore, no extraordinary
circumstances, we conclude we are bound by the panel’s holding in
García-Álvarez that the intent requirement is satisfied when a
defendant intends to cause death or serious bodily injury at the
time he takes control of the vehicle, whether or not the car is
immediately driven. The evidence in this case was more than
sufficient to permit the jury to find that Defendant possessed such
intent. Accordingly, we affirm Defendant’s § 2119(2) and related
§ 924(c)(1)(A)(ii) convictions.
III.
Defendant’s photo lineup argument is equally
unpersuasive. Defendant contends that because his out-of-court
identifications were conducted only by photo spreads, they were
impermissibly suggestive, giving rise to a very substantial
likelihood of misidentification. The district court rejected this
argument and denied his motion to suppress the out-of-court photo
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lineup identifications. The court reasoned that an identification
need not be done through a live lineup and, without any specific
claim of impermissibly suggestive procedure, the reliability of a
photo lineup is a question of credibility for the jury.
We “uphold a district court’s denial of a motion to
suppress if any reasonable view of the evidence supports it.”
United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993).
No one contests that the police only conducted photo lineups to
identify Defendant. We note, however, the police tried to conduct
a live lineup shortly after the incident, but Defendant fled,
making that impossible. Furthermore, Defendant has provided no
legal precedent to support his claim that conducting photo lineups
alone, instead of a live lineup, is impermissibly suggestive. He
also has not provided any evidence that the way in which the police
conducted the photo lineups was impermissibly suggestive or
unreliable. His claim consequently fails. See García-Álvarez, 541
F.3d at 15 (explaining that because the defendant did “not flag any
of the procedures utilized during this [photo] identification as
impermissibly suggestive,” his claim failed).
For the foregoing reasons, the judgment of the district
court is affirmed.
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