United States v. Torres-Perez ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2014
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ R. TORRES-PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and McConnell, District Judge.
Eric Alexander Vos, Federal Public Defender and Franco L.
Pérez-Redondo, Assistant Federal Public Defender for Defendant,
Appellant.
Angela M. Miller, Attorney, Appellate Section Criminal
Division, with whom W. Stephen Muldrow, Assistant United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, Brian C. Rabbit, Acting
Assistant Attorney General, and Robert A. Zink, Acting Principal
Deputy Assistant Attorney General, were on brief, for Appellee.
December 30, 2021
 Of the District of Rhode Island, sitting by designation.
MCCONNELL, District Judge. José Torres-Pérez
(Mr. Torres) was convicted of unlawful possession of a machine gun
in violation of 18 U.S.C. § 922(o) after a four-day jury trial. He
was sentenced to 33 months in prison followed by three years’
supervised release. Mr. Torres argues on appeal that there was
insufficient evidence on which to convict him on the possession of
a machine gun charge and that the district court erred in admitting
photographs of various firearms and accessories found on
Mr. Torres’ cell phone. After a thorough review, we reject
Mr. Torres’ challenges and affirm the judgment below.
I. Background
We recount the facts in the light most favorable to the
jury verdict, consistent with the court record below. United States
v. Noah, 130 F.3d 490, 493 (1st Cir. 1997).
On February 13, 2018, two Puerto Rico Police Department
officers, Officers Jonathan Serrano-Martinez, and Jumariel
Carrion-Ramirez, were driving through the Maternillo Ward section
of Fajardo to serve an arrest warrant on an unrelated individual.
Their vehicle was unmarked; they were followed by a marked police
car.
Officers Serrano and Carrion saw a black pick-up truck
parked near some rooster cages. Mr. Torres’ body was halfway in on
the driver’s side of the truck. Another individual was in the
passenger seat. Officer Serrano was driving and observed Mr. Torres
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become “alert” as the unmarked and marked police cars approached.
Officer Serrano saw Mr. Torres reach into the waistband of his
shorts, pull out a firearm with an extended magazine, and throw it
into the truck’s driver’s side seat. Mr. Torres then ran away from
the truck. Officer Serrano yelled, “Firearm!” causing Officer
Carrion to take notice. Officer Carrion saw Mr. Torres run in front
of their unmarked car.
Officers Serrano and Carrion ran after Mr. Torres and
his passenger. Officer Serrano decided to end his pursuit to go
back to the truck. Both men ultimately got away when Officer
Carrion lost sight of them.
Back at the truck, Officer Serrano observed a 9mm Glock
pistol on the driver’s seat. He saw that the gun appeared to have
been altered to add a chip allowing it to fire automatically. The
extended magazine attached had twenty-two rounds of 9mm caliber
ammunition. Inside the truck, Officer Serrano found a wallet
containing Mr. Torres’ New York driver’s license, social security
card, and a cell phone as well as a receipt with Mr. Torres’ name
on it. There was also a box of .40 caliber ammunition. The truck
was impounded.
Officer Serrano returned to same area several times
looking for Mr. Torres. He located him within the next week and
brought him to the police station. Mr. Torres told police that he
borrowed the truck to buy animal feed and denied knowing about the
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Glock. He was arrested and later indicted for unlawful possession
of a machine gun.
Before the jury trial but after the court’s deadline to
file pretrial motions, the government filed a motion in limine to
admit four photographs of firearms and accessories retrieved from
Mr. Torres’ cell phone. The Glock at issue was not in any of the
photographs. The government also filed a motion to preclude
Mr. Torres from introducing during cross-examination of a federal
agent his own self-serving statement that he did not possess the
firearm. The district court denied both motions for being filed
out of time but indicated that these issues could be raised during
trial.
The government raised admission of the photographs as
evidence again before opening statements. It advocated that the
photographs were admissible to prove that Mr. Torres generally
knew about firearms and specifically knew the Glock found in the
truck had been transformed into an automatic weapon. The government
intended to introduce the photographs through the data analyst who
retrieved them from Mr. Torres’ cell phone without comment or
opinion about their significance.
Mr. Torres objected on relevance grounds because none of
the photographs were of the gun in question and it was not known
who took or sent Mr. Torres the pictures. He also objected that
they were prejudicial and confusing propensity evidence. The
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district court disagreed and allowed the government to use this
evidence at trial.
The jury was allowed to view the Glock found in the
truck. It also heard expert testimony that the homemade alterations
on the gun – the back plate on the slide had a piece attached and
was not covered by polymer and a Glock chip welded on to a piece
of steel attached to the slide – made it obvious that the Glock
was a machinegun. The expert testified that a chip like that is
added solely to convert a semi-automatic firearm into a fully
automatic machinegun. The expert confirmed his observation by
testing the Glock, pulling the trigger to observe the unloaded
gun’s slide, and then loading the gun and firing it, shooting off
three rounds with one trigger pull. He also told the jury that the
unaltered Glock could hold fifteen rounds of ammunition and the
high-capacity magazine attached to the Glock found in the truck
held up to thirty rounds.
As evidence that Mr. Torres had knowledge of guns
generally and knew what an altered Glock looked like, the
government questioned a digital analyst with the Puerto Rico Police
Department who recovered the four photographs from Mr. Torres’
cell phone. The photographs depicted a gun with an extended
magazine, a hand holding the same gun, a pistol with a drum
magazine attached beside additional extended magazines, and a
gold-plated gun next to nine bullets. The analyst testified that
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he retrieved three of the photographs from Mr. Torres’ phone’s
WhatsApp account; he could not identify from where the final
photograph came. He could tell that the photographs had been
accessed or received in the months before Mr. Torres’ arrest.
After the close of the government’s case, Mr. Torres
moved for an acquittal under Federal Rule of Criminal Procedure
29, which the district court denied. He then took the stand in
his own defense. He testified that he borrowed the truck from a
man named Lazaro who paid him to take care of and train Lazaro’s
roosters. He admitted to taking Lazaro’s truck on the date of the
incident. He left his things, including his wallet and phone, in
the truck because he did not have any pockets in his shorts. He
told the jury that he ran from police because he became scared
when he saw people with guns dressed in plain clothes, driving in
an unmarked car. He admitted that the cell phone was his but denied
taking any of the four photographs and did not know who sent them
to him. Mr. Torres told the jury that he had never had, used, or
carried a gun. At the close of the evidence, Mr. Torres again moved
for judgment of acquittal. The district court denied his motion.
The jury found Mr. Torres guilty. Mr. Torres was
ultimately sentenced to thirty-three months in prison with three
years of supervised release.
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II. Analysis
Mr. Torres contends that his conviction cannot stand
given the district court’s errors. We discuss these alleged errors
seriatim, but ultimately conclude that nothing that Mr. Torres
raises in his appeal requires reversal.
A. Rule 29
Mr. Torres’ first point of error involves the district
court’s denial of his motions for judgment of acquittal under Rule
29. Mr. Torres argues that the district court erred in denying the
acquittal motion because the government failed to present
sufficient evidence on which a jury could find that he both
possessed the gun and knew it had the same characteristics as a
machinegun.
We consider an appeal on this ground de novo. United
States v. Santos-Rivera, 726 F.3d 17, 23 (1st Cir. 2013).
Specifically,
We examine the evidence, both direct and circumstantial,
in the light most favorable to the jury’s verdict. We do
not assess the credibility of a witness, as that is a
role reserved for the jury. Nor need we be convinced
that the government succeeded in eliminating every
possible theory consistent with the defendant’s
innocence. Rather, we must decide whether that evidence,
including all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude beyond a
reasonable doubt that the defendant committed the
charged crime.
United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (citations
and internal quotation marks omitted).
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1. Count One – Possession of a Machine Gun
Mr. Torres was convicted of possessing a machinegun.
“To establish a violation of § 922(o), ‘the government must prove
that 1) the defendant possessed or transferred a machinegun 2)
with knowledge that the weapon had the characteristics to bring it
within the statutory definition of a machinegun.’” United States
v. Tanco-Baez, 942 F.3d 7, 26 (1st Cir. 2019) (quoting United
States v. Olofson, 563 F.3d 652, 659 (7th Cir. 2009). “A machine
gun is defined as ‘any weapon which shoots, is designed to shoot,
or can be readily restored to shoot, automatically more than one
shot, without manual reloading, by a single function of the
trigger.’” United States v. Nieves-Castaño, 480 F.3d 597, 599 (1st
Cir. 2007) (quoting 26 U.S.C. § 5845(b)).
To meet the knowledge requirement threshold, the
government must prove that “the defendant had knowledge of the
characteristics that brought the gun within the statutory
definition, and not that []he had knowledge that the gun was in
fact considered a machine gun under federal law.” Id. “The
requisite mens rea may be established by circumstantial evidence,”
which includes “external indications signaling the nature of the
weapon.” Id. at 601 (quoting Staples v. United States, 511 U.S.
600, 615 n.11 (1994)).
The government presented evidence that Officer Serrano
himself observed Mr. Torres remove a gun with an extended magazine
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from the waistband of his shorts and throw it into the truck next
to which he was standing. Upon Officer Serrano’s return to the
truck after his unsuccessful pursuit of Mr. Torres, he testified
that he saw the same gun on the driver’s seat. The government
presented additional evidence connecting Mr. Torres to the truck,
including that his wallet with his social security card and New
York driver’s license was found in the truck along with his cell
phone and a receipt bearing Mr. Torres’ name. A reasonable jury
could accept this testimony and conclude that Mr. Torres became
concerned that the officers would find the machinegun in his
waistband and decided to throw it through the truck’s open window
onto the driver’s seat before fleeing the scene. See United States
v. Berríos-Bonilla, 822 F.3d 25, 29 (1st Cir. 2016). In this case,
the government presented sufficient evidence from which the jury
could find that Mr. Torres possessed the firearm.
Moving on to the second element of 18 U.S.C. § 922(o),
the government presented evidence that Mr. Torres knew the firearm
had the characteristics of a machinegun. The Glock recovered from
the truck was fitted with a chip allowing it to fire automatically.
The government presented evidence that the alterations
to the Glock were obvious and visible. Officer Serrano testified
that he could tell by looking at the Glock that had been altered.
The government’s firearms expert testified that the chip was
visible just from looking at the gun so the jury could have
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inferred that Mr. Torres would have seen the chip because he
handled the Glock to and from the waistband of his shorts. His
decision to then run from police permitted the jury to infer his
consciousness of guilt.
Moreover, the jury could view the Glock for themselves
during trial and had the opportunity to decide whether the chip
was visible and obvious to Mr. Torres. The Glock had an extended
magazine to accommodate additional ammunition so the jury could
have inferred that Mr. Torres knew the Glock could fire multiple
bullets with one pull of the trigger. Taking the evidence of the
Glock’s appearance and capability to fire more than one bullet at
a time in the light most favorable to the verdict, a jury could
reasonably find beyond a reasonable doubt that Mr. Torres knew
that the Glock he removed from the waistband of his shorts and
threw into the truck’s open driver’s side window had the
characteristics of a machinegun. Tanco-Baez, 942 F.3d at 26-27
(citing Nieves-Castaño, 480 F.3d at 601 and Staples, 511 U.S. at615 n.11).
The court finds that the record evidence supported the
verdict on the firearms count. After reviewing the evidence in the
light most compatible with the verdict and resolving all
credibility disputes in the verdict’s favor, we find that a
rational jury could conclude that Mr. Torres possessed the gun,
handled it, and therefore must have known that the Glock was
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altered to transform it into a machinegun that could fire more
than one round at a time, making a verdict that Mr. Torres was
guilty beyond a reasonable doubt reasonable. The district court
did not err in denying his motions for acquittal.
B. Admission of the Cell Phone Photographs
During the trial, the government introduced four
photographs of firearms and firearm accessories.
When the defendant’s objection to the district court’s
evidentiary ruling is properly preserved, as here, we normally
review for abuse of discretion. United States v. Velazquez-
Fontanez, 6 F.4th 205, 219 (1st Cir. 2021), cert. denied, 142 S.Ct.
500 (U.S. Nov. 15, 2021) (No. 21-5812). “A harmless evidentiary
error does not require reversal.” Id. (citing Kotteakos v. United
States, 328 U.S. 750, 765 (1946)).
On appeal, Mr. Torres argues that the photographs should
have been excluded under Rules 401 and 403 of the Federal Rules of
Evidence because they were not relevant, and their probative value
was “substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. Mr. Torres objected to the admission
of the pictures at an appropriate time as unfairly prejudicial.
The government argued that the pictures were relevant evidence of
Mr. Torres’ knowledge of and familiarity with firearms and were
admissible under Rule 401.
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After carefully examining the record, we find that the
district court did not abuse its discretion in admitting the
photographs from Mr. Torres’ cell phone. The photographs were
relevant to Mr. Torres' knowledge of firearm characteristics and
high-capacity capabilities. That he had these images on his phone
and accessed them months before this incident could help the jury
find that he was familiar with firearms generally and acquainted
with “the external and readily observable” altered features of the
Glock such that the jury could infer that Mr. Torres knew the Glock
was altered to operate as a machinegun. United States v. Shaw, 670
F.3d 360, 364-65 (1st Cir. 2012).
Moreover, Mr. Torres himself testified, denying
ownership of the Glock or any firearm. “All credibility disputes
are to be resolved in the verdict’s favor, and this court need not
believe that no verdict other than a guilty verdict could sensibly
be reached but must only satisfy itself that the guilty verdict
finds support in a plausible rendition of the record.” United
States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (internal quotations
omitted); Shaw, 670 F.3d at 362. The jury heard Mr. Torres’ denials
in the face of the government’s evidence to the contrary, weighed
the witnesses’ credibility, and rendered a verdict against him
based on all the evidence. The jury’s verdict is supported by the
record.
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Not only was there no abuse of discretion, but,
critically, Mr. Torres was also not prejudiced by the district
court’s admission of the photographs. The district court balanced
the probative value of the photographs against the potential for
unfair prejudice and concluded that they were relevant and more
probative than prejudicial. We defer to the district court’s
assessment. See United States v. Smith, 292 F.3d 90, 99 (1st Cir.
2002). The government presented ample, compelling evidence that
Mr. Torres actually and constructively possessed the machinegun.
The district court’s restriction of the scope of the data analyst’s
testimony to identifying the photographs without rendering an
opinion about their weight or meaning ensured that Mr. Torres was
not unfairly prejudiced.
Because we find that the district court did not abuse
its discretion in admitting the photographs and Mr. Torres was not
prejudiced by any error in admitting them, his appeal on this
ground is rejected.
III. Conclusion
For the reasons given above, Mr. Torres’ conviction is
AFFIRMED.
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