United States v. Rodriguez-Adorno ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1050
UNITED STATES,
Appellee,
v.
AUGUSTÍN RODRÍGUEZ-ADORNO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Lydia J. Lizarribar-Masini for appellant.
Vernon Benet Miles, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa and Julia M. Meconiates, Assistant United States
Attorneys, were on brief, for appellee.
September 17, 2012
LIPEZ, Circuit Judge. Appellant Augustín Rodríguez-
Adorno appeals his conviction in the United States District Court
for the District of Puerto Rico of conspiracy to commit a
carjacking and aiding and abetting an attempted carjacking
resulting in a death. He raises three challenges to his
conviction: (1) the government presented inappropriate and
prejudicial overview testimony from a Federal Bureau of
Investigation ("FBI") agent at the outset of its case, (2) the
government engaged in improper vouching in its closing argument,
and (3) the court erred in denying his Federal Rule of Criminal
Procedure 29 motion for a judgment of acquittal. He also claims
that the court erred in applying the United States Sentencing
Guidelines Manual ("USSG") § 2B3.1(c) "murder cross reference" in
determining the guidelines range for his sentence. Finding
appellant's arguments meritless, we affirm.
I.
As we are called upon to assess the sufficiency of the
evidence supporting appellant's conviction, we present the facts in
the light most favorable to the verdict, while also describing
briefly appellant's version of the events. See United States v.
Díaz, 670 F.3d 332, 337 (1st Cir. 2012). At the outset, we provide
only a summary of the relevant facts, reserving for our analysis a
more detailed discussion of the facts relevant to each issue.
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On May 12, 2007, appellant and two co-defendants
approached a car leaving the parking lot of a Subway restaurant in
the Río Piedras district of San Juan, Puerto Rico. The two co-
defendants walked behind the car, while appellant, who was
following them closely, struck the passenger's window and told the
two occupants "[t]his is the car we are going to take." Appellant
then tried to open the passenger-side door of the car, but, finding
it locked, ran around to the driver's side. The driver's door was
unlocked and appellant began to fight with the driver, who was
unwilling to give up the car. When the two co-defendants moved to
join the fight, the passenger got out of the car to aid the driver.
After a brief altercation, the driver yelled to the passenger to
get back in the car. Immediately after the victims re-entered the
car, one of appellant's two co-defendants shouted to the other to
shoot the driver "because he was a tough one." The other co-
defendant then pulled out a pistol and fired five or six times
toward the driver of the car, killing him.
Appellant and his two co-defendants were indicted on four
counts: (1) conspiring to commit a carjacking with intent to cause
death or serious bodily harm, in violation of 18 U.S.C. §§ 371,
2119; (2) aiding and abetting in a carjacking that resulted in a
death, in violation of 18 U.S.C. § 2119(3); (3) aiding and abetting
in the use, carriage, and discharge of a firearm in furtherance of,
during, and in relation to the commission of a crime of violence,
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in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and (4) aiding and
abetting each other in causing the death of another person through
the use of a firearm, in violation of 18 U.S.C. § 924(j).
Appellant was tried alone, after one co-defendant agreed
to plead guilty and charges against the other were dropped. At
trial, the government presented extensive evidence against
appellant, including testimony from the passenger of the car and
two Subway employees who witnessed the event and identified
appellant. The government also introduced surveillance video
footage from a local business showing appellant and his co-
defendants walking toward the scene of the shooting shortly before
the incident, as well as from a surveillance camera at the Subway
restaurant showing a portion of the fight. Additionally, the
parties stipulated that DNA samples taken from a hat and pieces of
a gold chain found at the scene were consistent with DNA samples
provided by appellant.
Appellant testified at trial. Although he did not
dispute the fact of the altercation, he provided a different
version of events. According to appellant, the incident began when
the car driven by the victim brushed his knee as he and his friends
were walking along the side of the road. He testified that he hit
the window of the car in anger after the car hit him, and that the
driver exited the car in a belligerent fashion. Appellant stated
that the driver punched one of his co-defendants and then attacked
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him, forcing him to the ground. He testified that as he was
getting up he heard gun shots, but had previously had no idea that
one of his co-defendants was armed.
The jury found appellant guilty of counts one and two of
the indictment -- conspiring to commit a carjacking with intent to
cause death or serious bodily harm, and aiding and abetting in a
carjacking that resulted in a death. Because the victim was killed
in the course of the attempted robbery, the court applied a "murder
cross reference," USSG § 2B3.1(c), in determining the guidelines
range applicable to appellant. This application raised the base
level for the offense conduct to 43, and called for a sentence of
life in prison. However, considering appellant's young age (26
years), lack of any criminal history, and the fact that he was
neither the shooter nor the one who urged the shooter to kill the
victim, the court found that a life sentence "is not conscionable
in this case." Instead, it imposed a 180-month sentence to be
followed by three years' supervised release. This appeal followed.
II.
A. Overview Testimony
As we have now said many times, overview testimony is
problematic when it "consists of declarations by a witness --
commonly a law enforcement officer involved in the investigation at
issue -- presented early during trial to describe the government's
general theory of the case." United States v. Vázquez-Rivera, 665
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F.3d 351, 356 (1st Cir. 2011). Such testimony commonly "relie[s]
heavily on information told to [the witness] by others -- i.e., on
inadmissible hearsay -- rather than on . . . personal knowledge,"
United States v. Meises, 645 F.3d 5, 14 (1st Cir. 2011), and often
"preview[s] the testimony of other witnesses," id. at 14 n.13. In
addition to the hearsay problem, overview testimony of this sort is
"especially problematic because juries may place greater weight on
evidence perceived to have the imprimatur of the government."
United States v. Flores-de-Jesús, 569 F.3d 8, 17 (1st Cir. 2009)
(quoting United States v. Casas, 356 F.3d 104, 120 (1st Cir. 2004))
(internal quotation marks omitted).
The prejudicial effect of this kind of testimony is
heightened when an overview witness is permitted to testify to the
ultimate issue in a criminal trial -- the defendant's culpability.
See Meises, 645 F.3d at 18 (noting that it is "patently unfair" for
a case agent to testify to defendant's culpability). Furthermore,
testimony regarding culpability is a form of lay opinion that will
rarely, if ever, meet the requirements of Federal Rule of Evidence
701. See Fed. R. Evid. 701(b); Vázquez-Rivera, 665 F.3d at 358.
However, testimony from a law enforcement officer who
"played a hands-on role in nearly every aspect of the
investigation" is usually permissible where it "consist[s] of
describing the sequence of events that he had seen and heard."
Meises, 645 F.3d at 15. As we have explained, "[t]here may be
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value in having a case agent describe the course of his
investigation in order to set the stage for the testimony to come
about the nature of the conspiracy and the defendants involved."
Flores-de-Jesús, 569 F.3d at 19. But this testimony must be
limited to a description of the investigation, and may not shade
into a statement of the government's theory of the case or
conclusory statements about the defendant's culpability. See id.
B. Agent Gilbert's Testimony
We review preserved evidentiary objections, including
those challenging overview testimony, for abuse of discretion. See
United States v. Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008). Of
course, even if we find error, we will not overturn a conviction if
we deem it harmless, meaning that "it is highly probable that the
error did not influence the verdict." Id. (quoting United States
v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)) (internal quotation
marks omitted). Where an objection was not raised before the
district court, we review admission of the challenged testimony for
plain error. Id. This requires us to determine whether "(1) an
error occurred (2) which was clear or obvious and which not only
(3) affected [] substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Vázquez-Rivera, 665 F.3d at 357 (quoting Flemmi, 402
F.3d at 16) (alteration in original). We have noted that "[t]his
inquiry is substantially similar to the standard we follow in
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harmless error analysis, with the added wrinkle that the
petitioner, not the government, bears the burden of persuasion with
respect to prejudice." Id. at 363 (quoting Ramírez-Burgos v.
United States, 313 F.3d 23, 29 (1st Cir. 2002)) (internal quotation
marks omitted).
The government's first witness at trial was FBI agent
Richard Gilbert, who was the agent in charge of the investigation.
Among other things, his testimony described the course of the
investigation. Appellant argues that portions of Gilbert's
testimony were impermissible overview testimony. In particular, he
points to Gilbert's characterization of the events of May 12, 2007,
as a "carjacking" and "murder." He also challenges the
admissibility of Gilbert's testimony identifying individuals
appearing on the surveillance videos that were shown to the jury,
as well as Gilbert's testimony about who was involved in the
altercation that morning. Finally, appellant notes that Gilbert
also summarized the statements of others by testifying that seven
or eight witnesses identified appellant as being involved in the
altercation. In sum, appellant argues that much of Gilbert's
testimony was inadmissible hearsay and that Gilbert offered
prejudicial testimony concerning appellant's culpability that
usurped the jury's fact-finding function.
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1. Preserved Claim of Error
Stating that Gilbert's characterization of the event as
a "carjacking" was based on hearsay, the government acknowledges
that it was admitted in error. This acknowledgment was apt, not
only because the statement may have been based on hearsay (the
government does not elaborate on its concession), but also because
it was inadmissible lay opinion testimony as to the ultimate issue
of appellant's culpability. See Fed. R. Evid. 701(b) (stating that
opinion testimony of lay witness must be "helpful to clearly
understanding the witness's testimony or to determining a fact in
issue"); Vázquez-Rivera, 665 F.3d at 358 ("[L]ay opinions going to
the ultimate issue will rarely meet th[e] requirement [of Rule
701(b)], 'since the jury's opinion is as good as the witness's.'"
(quoting United States v. Sanabria, 645 F.3d 505, 516 (1st Cir.
2011))). Appellant preserved his objection to this testimony. The
government argues that admission of this testimony was harmless.
After appellant's objection, the government corrected
itself and referred to the incident as an "alleged carjacking."
The incident was referred to as a "carjacking" only three other
times during Gilbert's examination, once by the government,
properly labeling it "alleged," but twice by Gilbert, who omitted
the qualifier. However, these two statements were passing
references on the first day of trial and the government did not
refer to Gilbert's characterization of the event as a "carjacking"
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in its closing argument. In the context of all of the evidence
offered at trial -- including testimony from the passenger in the
car and multiple other witnesses -- these comments were
insignificant. Accordingly, we may safely conclude that "it is
highly probable that the error did not influence the verdict," and
was thus harmless. Rodriguez, 525 F.3d at 95.
2. Unpreserved Claims of Error
Appellant challenges two additional portions of Gilbert's
testimony. First, he takes issue with Gilbert's testimony
identifying the individuals captured on the two surveillance tapes
shown to the jury, as well as testimony identifying the individuals
involved in the altercation. Second, he challenges Gilbert's
testimony that seven or eight witnesses identified appellant as
being involved in the incident. Since he did not raise objections
to any of this testimony at trial, we review only for plain error
and appellant bears the burden of establishing prejudice. See
Rodriguez, 525 F.3d at 95.
Gilbert's testimony that seven or eight witnesses
identified appellant as being involved in the incident, which was
offered to prove that involvement, was based on inadmissible
hearsay. See Fed. R. Evid. 801. This is precisely the kind of
inadmissible hearsay testimony, often present in overview
testimony, that we have repeatedly condemned. See Flores-de-Jesús,
569 F.3d at 19-20. Understandably, the government makes no effort
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to defend this statement, conceding that it was admitted
erroneously.
Gilbert's testimony identifying the individuals captured
on the two surveillance tapes shown to the jury, as well as
testimony identifying the individuals involved in the altercation
on the basis of those tapes, present a closer question. Testimony
by a law enforcement officer identifying a defendant as the person
depicted in a video or photograph may be admissible where "the
witness possesses sufficiently relevant familiarity with the
defendant that the jury cannot also possess, and when the [images]
are not either so unmistakably clear or so hopelessly obscure that
the witness is no better-suited than the jury to make the
identification." United States v. Jackman, 48 F.3d 1, 4-5 (1st
Cir. 1995). However, where the witness is in no better position
than the jury to make an identification, such testimony does not
meet the requirements of Federal Rule of Evidence 701 and is
inadmissible. See United States v. Jadlowe, 628 F.3d 1, 24 (1st
Cir. 2010) (finding testimony of police officers inadmissible where
jurors are equally capable of identifying defendant as person seen
in video surveillance). Here, it is unclear whether Gilbert had
any special familiarity with the individuals involved that would
make him better suited to make the identifications than the jurors.
Accordingly, we will assume, without deciding, that his testimony
was admitted in error.
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However, appellant cannot demonstrate the prejudice
required by plain error review. Gilbert's identification of
appellant and his co-defendants from the tapes was clearly
innocuous in light of the fact that appellant acknowledged that he
was present and took part in the fight. For the same reason,
Gilbert's testimony that seven or eight witnesses identified
appellant as being involved in the incident cannot have been
prejudicial. Both forms of testimony simply assert a fact that
appellant acknowledged was true. Thus, appellant does not come
close to "surmount[ing] the high hurdle of plain error review [by]
show[ing] that the improper remarks affected the outcome of the
trial." Vázquez-Rivera, 665 F.3d at 363 (internal quotation marks
omitted).
III.
Appellant claims that the government engaged in improper
vouching in its closing argument. In particular, appellant sees
improper vouching in: (1) the government's statement, referring to
the car passenger's testimony, that "[n]o one has ever said that
[the passenger] testified other than honestly"; (2) the
government's rhetorical questions, "Was [the passenger] credible?
Was he honest? Of course, he was"; (3) the statement that
verification of one aspect of the passenger's testimony "reflect[s]
upon [his] ability to testify truthfully and honestly"; and (4) the
statement that, "[t]he evidence shows that the more credible
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witnesses here are those who have no interest in this case." The
first of these statements was made in the government's initial
closing argument and the final three in its rebuttal to appellant's
argument. Since appellant did not object to these statements at
trial, we review them for plain error. See United States v.
Figueroa-Encarnacion, 343 F.3d 23, 27 (1st Cir. 2003).
Improper vouching occurs when a prosecutor or government
witness "impart[s] her personal belief in a witness's veracity or
impl[ies] that the jury should credit the prosecution's evidence
simply because the government can be trusted." United States v.
Valdivia, 680 F.3d 33, 49 (1st Cir. 2012) (quoting United States v.
Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003)) (internal quotation
marks omitted). The first, third and fourth statements identified
above provide fair commentary on the evidence. The first is simply
an argument, somewhat inartfully formed, that the passenger was
never effectively impeached. The third statement points out that
there was corroboration for a portion of the passenger's testimony,
justifying the inference that he has generally testified
truthfully. The fourth statement is a suggestion that witnesses
who have no stake in the outcome of the case can be viewed by
jurors as more credible. However, the second statement is
unmistakably the personal opinion of the prosecutor as to the
honesty of a witness and constitutes improper vouching.
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We have explained that vouching is more likely to be
harmful "where the prosecutor flaunts the government's skills and
purity of motive or where the context or the prosecutor's words
imply private knowledge of the defendant's guilt that unfortunately
cannot be shared with the jury." United States v. Gomes, 642 F.3d
43, 47 (1st Cir. 2011). Neither of these problematic behaviors
occurred here. Even though the prosecutor provided his own opinion
of the passenger's credibility, the jury had ample opportunity to
draw its own conclusions about the witness's veracity, given that
it saw and heard the passenger testify for several hours. The
prosecutor's comment, prefaced by the introductory phrase "of
course," implied no special knowledge or purity of motive, and
cannot have made a significant difference in the jury's perception
of this testimony. See id. Because appellant has failed to show
the requisite prejudice, this error does not justify a new trial
under the plain error rubric. See Figueroa-Encarnacion, 343 F.3d
at 28-29.
IV.
Federal Rule of Criminal Procedure 29 entitles a
defendant to a judgment of acquittal if, at the close of all
evidence or the conclusion of the government's case, "the evidence
is insufficient to sustain a conviction." We review a district
court's denial of a Rule 29 motion de novo, "taking the evidence in
the light most favorable to the government and making all
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reasonable inferences in its favor." United States v. Giambro, 544
F.3d 26, 29 (1st Cir. 2008). Such an analysis requires us to
"assess whether a reasonable factfinder could have concluded that
the defendant was guilty beyond a reasonable doubt." United States
v. Fernández-Hernández, 652 F.3d 56, 67 (1st Cir. 2011). Thus, we
ask only whether "the guilty verdict finds support in a plausible
rendition of the record." United States v. Hatch, 434 F.3d 1, 4
(1st Cir. 2006) (quoting United States v. Cruzado-Laureano, 404
F.3d 470, 480 (1st Cir. 2005)) (internal quotation marks omitted).
Although his briefing is not clear, appellant appears to
challenge his convictions of both conspiracy and aiding and
abetting a carjacking resulting in death. He argues that there was
insufficient evidence to allow the jury to find that he possessed
the requisite intent to commit a carjacking. This challenge is
meritless.
"To support a conviction under a conspiracy charge, the
government must show that a defendant had both the intent to agree
to commit a crime, and the intent that the crime be completed."
United States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010). We
have noted that "[t]he prosecution need only show knowledge of the
basic agreement, with an intent to commit the underlying
substantive offense. The requisite knowledge and intent can be
proven through circumstantial evidence, including inferences from
acts committed by the defendant that furthered the conspiracy's
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purposes." Id. (quoting United States v. García-Pastrana, 584 F.3d
351, 377 (1st Cir. 2009)) (internal quotation marks omitted).
In turn,
[t]he elements of a carjacking resulting in
death are (1) taking or attempted taking from
the person or presence of another; (2) a motor
vehicle transported, shipped, or received in
interstate or foreign commerce; (3) through
the use of force, violence, or by
intimidation; (4) with the intent to cause
death or serious bodily harm; (5) that results
in death.
Id. at 61. In Holloway v. United States, 526 U.S. 1 (1999), the
Supreme Court clarified the intent element of the statute,
explaining 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 intent to seriously
harm or kill the driver if necessary to steal
the car (or, alternatively, if unnecessary to
steal the car).
Id. at 12. Finally, to establish aiding and abetting liability,
the government has to prove that: 1) the substantive offense was
actually committed, 2) "th[e] defendant assisted in the commission
of that crime or caused it to be committed," and 3) "the defendant
intended to assist in the commission of that crime or to cause it
to be committed." United States v. Gonzalez, 570 F.3d 16, 27-29
(1st Cir. 2009) (quoting jury instructions).
In making his sufficiency argument, appellant focuses on
the intent element of the carjacking statute. However, there was
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ample evidence indicating that appellant had the requisite 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 12.1 Most importantly, the passenger in the car
offered extensive testimony about the events of May 12, 2007,
including testimony that appellant instigated the entire chain of
events by striking his window and telling him and the driver, "This
is the car we are going to take." This testimony was powerful
evidence that appellant and his co-defendants were acting in
concert and that they approached the car with the intent to commit
a carjacking. In addition to this testimony, there was more
evidence in the form of eyewitness testimony describing the
altercation between appellant and his co-defendants and the
victims, as well as physical evidence linking appellant to the
scene.
Appellant argues that there was no evidence that he was
aware that one of his co-defendants had a gun and, thus, that there
was insufficient evidence to permit the jury to find that he had an
1
Appellant's sufficiency argument relies in large measure on
his overview testimony and vouching arguments. However, the latter
is irrelevant to the sufficiency analysis. It is a trial fairness
issue and we have dealt with it as such. Furthermore, we do not
include the contested overview testimony in our sufficiency
analysis because we have either concluded that it was admitted in
error or assumed so. Thus, it would be inappropriate to rely on it
in assessing the sufficiency of the evidence supporting appellant's
conviction. Instead we focus on the other ample evidence
indicating the appellant's intent.
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intent to kill or seriously harm the victim in carrying out the
carjacking. However, as the government points out, the evidence
showed that appellant and his co-defendants used violence from the
very beginning of the incident, suggesting a willingness to harm
the victim. In addition to the testimony that appellant struck a
window of the car and announced his intent to take the vehicle,
there was testimony from several witnesses that appellant and his
co-defendants began to fight with the victims when they refused to
acquiesce in the carjacking. Furthermore, there was extensive
evidence that appellant and his co-defendants acted in concert,
rendering it unlikely that appellant was unaware that his co-
defendant was armed. Finally, although the fact of the killing
does not alone satisfy the intent element of § 2119, "[c]ommon
sense . . . dictates that the final act, at the very least,
evidences the intent." Castro-Davis, 612 F.3d at 63 n.13. In
aggregate, this evidence is sufficient to permit the jury to
conclude that appellant "possessed the intent to seriously harm or
kill the driver if necessary to steal the car." Holloway, 526 U.S.
at 12.
Accordingly, "taking the evidence in the light most
favorable to the government and making all reasonable inferences in
its favor," Giambro, 544 F.3d at 29, there is no question that the
government presented sufficient evidence to support appellant's
convictions.
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V.
USSG § 2B3.1 establishes sentencing guidelines for the
crime of robbery, and provision (c)(1) of that section instructs
that "[i]f a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111 . . . , apply § 2A1.1,"
which calls for a base offense level of 43 and a sentence of life.
In turn, 18 U.S.C. § 1111 defines murder as "the unlawful killing
of a human being with malice aforethought." As with all appeals
concerning the interpretation and application of the sentencing
guidelines, a court's decision to apply § 2B3.1(c)(1) is reviewed
de novo and its factual findings for clear error. United States v.
Aguasvivas-Castillo, 668 F.3d 7, 13 (1st Cir. 2012).
Appellant raises several challenges to application of the
murder cross reference, USSG § 2B3.1(c)(1). As best we can make
out, he argues first that there was insufficient evidence to
establish the intent required to convict him of a carjacking under
18 U.S.C. § 2119. This argument is simply a restatement of his
argument in support of his Rule 29 motion, and it fails for the
reasons described above. Appellant also argues that because he was
acquitted of counts three (aiding and abetting in the use,
carriage, and discharge of a firearm in furtherance of, during, and
in relation to the commission of a crime of violence) and four
(aiding and abetting the killing of another person through the use
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of a firearm), it was error for the court to apply the murder cross
reference.
Without suggesting that there is any validity to
appellant's argument about the relationship between the application
of the murder cross reference and the acquittal on counts three and
four, we conclude that, on the facts of this case, the convictions
on counts one and two justify the application of the murder cross
reference. As required by the guidelines, the circumstances of the
victim's killing would constitute murder under 18 U.S.C. § 1111.
Here, the victim was shot and killed by appellant's co-conspirator
in the course of the carjacking. That is enough to apply the
murder cross reference to appellant. See United States v. García-
Ortiz, 528 F.3d 74, 81-82 (1st Cir. 2008) (noting that a "killing
[during a] robbery [is] first-degree murder by those who
perpetrated the robbery, regardless of who pulled the trigger or
any individual intent" (internal quotation mark omitted)); United
States v. Shea, 211 F.3d 658, 674 (1st Cir. 2000) (stating same and
finding application of USSG § 2B3.1(c)(1) appropriate).
VI.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
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