United States v. Forty-Febres ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 18-2106
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ADAMS JOEL FORTY-FEBRES, a/k/a Adams Forty-Febres,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Aida M. Delgado-Colón, U.S. District Judge]
    Before
    Lynch, Thompson, and Kayatta,
    Circuit Judges.
    Ovidio E. Zayas-Pérez for appellant.
    Gregory B. Conner, Assistant United States Attorney, with
    whom W. Stephen Muldrow, United States Attorney, and Mariana E.
    Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
    Division, were on brief, for appellee.
    December 8, 2020
    LYNCH, Circuit Judge.        In 2018, a jury convicted Adams
    Joel Forty-Febres of one count of stealing a motor vehicle in
    violation of 18 U.S.C. § 2119 and one count of brandishing a
    firearm   in   violation   of   18    U.S.C.   § 924(c)(1)(A)(ii)      for    a
    carjacking committed on November 5, 2015, in Canóvanas, Puerto
    Rico.     Forty-Febres     argues    that    the   evidence   at   trial   was
    insufficient to support his conviction, that the district court
    abused its discretion in rulings related to his co-defendant's
    testimony, and that the jury's verdict was inconsistent.                     We
    affirm.
    I. Facts
    There were two carjackings on November 5, 2015.                 The
    first occurred at around 9:30 PM. Pamela Mena-Varella, the victim,
    owned a mint green 2005 Toyota Corolla.            She worked at a store in
    an outlet mall.   At trial, she testified that, after leaving work,
    she walked to her car in the mall parking lot.           She got in, turned
    it on, and began backing out of her parking spot.              She said she
    then noticed two men walking toward her.               One of the men was
    pointing a gun at her.     She said that before she could drive away,
    the man with the gun came up to the window of her car and said,
    "you either get out of the car or I'll shoot your head off."               She
    testified that the man with the gun had dark lips, pointed ears,
    bangs, and a long rat tail.     He was wearing a red and white Chicago
    Bulls shirt, short black pants, and black tennis shoes.             She said
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    the other man had a lot of hair and was wearing a gray, long-
    sleeved shirt with black pants.        As instructed, Mena-Varella got
    out of her car.    The two men got in and drove away.
    The   second    carjacking   occurred   approximately   thirty
    minutes later in the same neighborhood.           Delmarie Muriel-Colón
    testified that, on November 5, 2015, she was picking up her son.
    He was with his paternal grandparents and she drove to their house
    to pick him up.    Their house was about a five-minute drive from
    the store where Mena-Varella worked. Muriel-Colón said that, after
    arriving, she stopped in front of the gate to the house and waited
    for it to open.    She noticed a mint green Toyota Corolla coming
    down the street.    She knew the car was a Toyota Corolla because
    she was also driving a Toyota Corolla.      The street was a dead end,
    and she said that as she was waiting, she saw the same Corolla
    pass her again going in the opposite direction.       She picked up her
    son and started driving home.     She said she made two turns before
    noticing that a car was following her very closely.           She kept
    driving until a mint green Toyota Corolla crossed in front of her
    and blocked her way.       She testified that a man got out of the
    passenger side of the Corolla, pointed a gun at her, and ordered
    her out of the car.      She said that the area was well lit and that
    she could see the man with the gun.       She described him as having
    dark skin and dark, unruly hair and said he was wearing a t-shirt
    and basketball shorts.      She said he had "a penetrating look" she
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    "can't forget."     Muriel-Colón's son, who had been seated in the
    back of the car, jumped into her lap.          They got out of the car.
    The man with the gun got in the car and drove away, following the
    mint green Corolla.
    Six days later, on November 11, 2015, the police found
    Mena-Varella's car.     They contacted Mena-Varella and asked her to
    identify her carjacker in a lineup. At the lineup, she said Forty-
    Febres was the man who had pointed the gun at her and ordered her
    out of the car.        She also identified Forty-Febres at trial.
    Additionally, Mena-Varella identified Forty-Febres's accomplice at
    trial as David Alexander Vázquez-De León.
    The police also found Muriel-Colón's car, which had been
    destroyed.      Like Mena-Varella, Muriel-Colón identified Forty-
    Febres in a lineup as the man who had pointed the gun at her and
    ordered her out of her car.          She also identified him as her
    carjacker at trial.
    II. Procedural History
    Forty-Febres and Vázquez-De León were indicted on four
    counts related to the two carjackings: (1) violating 18 U.S.C.
    § 2119 by carjacking Muriel-Colón; (2) brandishing a firearm to
    steal   Muriel-Colón's       car    in     violation     of   18      U.S.C.
    § 924(c)(1)(A)(ii); (3) violating 18 U.S.C. § 2119 by carjacking
    Mena-Varella;    and   (4)   brandishing   a   firearm   to   steal    Mena-
    Varella's car in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
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    The trial began on May 15, 2018.               Forty-Febres and
    Vázquez-De León were set to be tried together, but after the first
    day of trial, Vázquez-De León pleaded guilty to the two carjacking
    counts.   The government dismissed the two counts of brandishing a
    firearm against him.      During his change-of-plea hearing, Vázquez-
    De León claimed not to know Forty-Febres.              Forty-Febres wanted
    Vázquez-De León to testify in his defense.            Vázquez-De León later
    invoked his Fifth Amendment right against self-incrimination and
    did not testify at Forty-Febres's trial.         The judge instructed the
    jury to draw no inferences from the fact that Vázquez-De León was
    no longer at the defense table.
    Both Mena-Varella and Muriel-Colón testified for the
    prosecution as described earlier.            The government called three
    police    officers   to   testify    about    their    investigations   and
    introduced evidence that both Mena-Varella's and Muriel-Colón's
    Toyota Corollas were manufactured in Japan and moved through
    interstate commerce.
    Forty-Febres called one police officer to testify that
    fingerprints found on Mena-Varella's Corolla did not match Forty-
    Febres's fingerprints.     He called two additional witnesses -- his
    ex-fiancée and her mother -- to testify that he was with them on
    the night of November 5, 2015.
    The jury returned its verdict on May 22, 2018.          It found
    Forty-Febres guilty of carjacking Muriel-Colón and brandishing a
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    firearm while doing so.       It acquitted him of the charges related
    to the carjacking of Mena-Varella.
    Forty-Febres appeals from the verdict against him for
    the charges related to the Muriel-Colón carjacking.
    III. Legal Analysis
    Forty-Febres makes three arguments on appeal.             First, he
    says that the evidence at trial was insufficient to support his
    conviction.     Next, he says that the district court abused its
    discretion by refusing to delay the trial until Vázquez-De León
    was sentenced and by allowing Vázquez-De León to assert his Fifth
    Amendment right.      Third, he argues that the fact that the jury
    acquitted him of one carjacking but convicted him of the other
    makes the jury's verdict inconsistent.
    A.   The Evidence Was Sufficient to Support Forty-Febres's
    Conviction
    In    reviewing    sufficiency-of-the-evidence        challenges,
    "we consider whether any rational factfinder could have found that
    the evidence presented at trial, together with all reasonable
    inferences, viewed in the light most favorable to the government,
    established    each   element   of   the     particular   offense   beyond   a
    reasonable doubt."     United States v. Ridolfi, 
    768 F.3d 57
    , 61 (1st
    Cir. 2014) (quoting United States v. Rodríguez, 
    735 F.3d 1
    , 7 (1st
    Cir. 2013)).
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    Forty-Febres was convicted of the carjacking of Muriel-
    Colón under 18 U.S.C. § 2119.           The crime has four elements: (1)
    taking or attempting to take "from the person or presence of
    another"; (2) "by force and violence or by intimidation"; (3) with
    "intent to cause death or serious bodily harm"; (4) "a motor
    vehicle    that    has    been   transported,    shipped,       or   received   in
    interstate or foreign commerce." 18 U.S.C. § 2119; see also United
    States v. Velázquez-Aponte, 
    940 F.3d 785
    , 797 (1st Cir. 2019).
    Forty-Febres      argues    that   there   was   insufficient        evidence   to
    conclude   beyond     a    reasonable   doubt    that   these    elements    were
    satisfied.     He says that no DNA or fingerprint evidence at trial
    placed him at the crime scene, that he did not meet Muriel-Colón's
    initial description of the man who carjacked her, and that the
    testimony of Forty-Febres's ex-fiancée and her mother showed that
    he was with them on the night of November 5, 2015.                   We hold that
    a reasonable factfinder could have found that the evidence at
    trial, viewed in the light most favorable to the government,
    established each of these elements beyond a reasonable doubt.
    As to the first element, a reasonable factfinder could
    have   found      Muriel-Colón's    testimony     at    trial    sufficient     to
    establish that Forty-Febres was the person who took her car from
    her.   Muriel-Colón testified at trial that it was Forty-Febres who
    carjacked her.       She identified him at the trial and said that he
    was the man who got out of the mint green Toyota Corolla and
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    pointed a gun at her.     She said she could see him clearly.    She
    described his appearance at trial and said that she "can't forget
    his look."    She also identified Forty-Febres in a lineup after her
    car was stolen.
    There was other evidence corroborating Muriel-Colón's
    trial testimony that Forty-Febres was her carjacker. Mena-Varella1
    said that her mint green Toyota Corolla was stolen at around 9:30
    PM, thirty minutes before Muriel-Colón was carjacked by someone
    driving a mint green Corolla.    Mena-Varella testified that Forty-
    Febres, whom she had identified at a lineup and at trial, was one
    of the men who had stolen her car.      The two carjackings occurred
    about a five-minute drive away from each other.     It is reasonable
    to infer that Mena-Varella's car was later used in the carjacking
    of Muriel-Colón.
    Muriel-Colón's testimony also supports a finding that
    the second and third elements of the crime were met.       She said
    that Forty-Febres came up to the door of her car, pointed a gun at
    her, and ordered her out of her vehicle.     From this testimony, a
    reasonable factfinder could infer that Forty-Febres, by aiming a
    deadly weapon directly at Muriel-Colón while stealing her car,
    1    The jury did not convict Forty-Febres on the counts
    related to Mena-Varella's carjacking.     But sufficiency-of-the-
    evidence review for the counts on which a defendant was convicted
    is "independent of the jury's determination that evidence on
    another count was insufficient."    United States v. Powell, 
    469 U.S. 57
    , 67 (1984).
    - 8 -
    took her vehicle through force or intimidation and with the intent
    to cause death or serious bodily harm.              This same evidence also
    supports Forty-Febres's conviction for brandishing a firearm under
    18 U.S.C. § 924(c)(1)(A)(ii).
    Finally, the prosecution certified that Muriel-Colón's
    Toyota Corolla was manufactured in Japan.             Her car had thus "been
    transported,    shipped,    or    received     in   interstate      or    foreign
    commerce," 18 U.S.C. § 2119, satisfying the final element of the
    crime.
    Forty-Febres's argument that the evidence at trial was
    insufficient   because     the    government    did    not   present       DNA   or
    fingerprint evidence placing him at the crime scene goes nowhere.
    "[T]he fact that the government did not present certain kinds of
    evidence does not [necessarily] mean that there was insufficient
    evidence for conviction."        United States v. Rivera-Rodríguez, 
    617 F.3d 581
    , 599 (1st Cir. 2010) (second alteration in original)
    (quoting United States v. Liranzo, 
    385 F.3d 66
    , 70 (1st Cir.
    2004)).   Viewed in the light most favorable to the verdict, a
    reasonable factfinder could have found that the victims' testimony
    at trial described earlier was sufficient to convict Forty-Febres
    beyond a reasonable doubt.
    Forty-Febres's         other   two    arguments     are        similarly
    unavailing.    He says that he did not meet Muriel-Colón's original
    - 9 -
    description of the man who pointed a gun at her2 and that the time
    of day prevented Muriel-Colón from getting a good look at her
    carjacker.     He also argues that his ex-fiancée and her mother
    provided him with an alibi.          Whether the jury believed Muriel-
    Colón's testimony identifying Forty-Febres or the testimony that
    Forty-Febres was with his ex-fiancée and her mother turns on the
    witnesses'     credibility.     In    reviewing    a    challenge   to   the
    sufficiency of the evidence, "[i]t is not our role to assess the
    credibility of trial witnesses or to resolve conflicts in the
    evidence" and "we must resolve all such issues in favor of the
    verdict." United States v. Gaudet, 
    933 F.3d 11
    , 15 (1st Cir. 2019)
    (quoting United States v. Hernández, 
    218 F.3d 58
    , 66 n.5 (1st Cir.
    2000)).    The jury, having heard all of the evidence at trial,
    credited     Muriel-Colón's   identification      and   did   not   believe
    testimony about Forty-Febres's alibi.       It was entitled to do so.
    B.   The District Court Did Not Abuse Its Discretion
    Forty-Febres next argues that the district court abused
    its discretion in two ways: by refusing to compel Forty-Febres's
    co-defendant to testify and by denying Forty-Febres's motion to
    delay the trial until after his co-defendant was sentenced.              We
    find no abuse of discretion.
    2    In his brief to us, Forty-Febres does not explain how or
    why Muriel-Colón's initial description was inaccurate.
    - 10 -
    "[A]   witness     may    invoke      the    Fifth     Amendment      if
    testifying might incriminate him on direct or cross-examination,
    despite a defendant's Sixth Amendment interests in presenting that
    testimony."      United States v. Ramos, 
    763 F.3d 45
    , 53 (1st Cir.
    2014).    The burden on the witness is "not a particularly onerous"
    one.    United States v. Castro, 
    129 F.3d 226
    , 229 (1st Cir. 1997).
    He must show that there is a "reasonable possibility that, by
    testifying, he may open himself to prosecution."
    Id. When a district
    court rules favorably on a witness's invocation of his
    Fifth    Amendment      right,   we    review      its    ruling    for     abuse   of
    discretion.      See
    id. Under this standard,
    we will reverse the
    district court's ruling "only when it is 'perfectly clear . . .
    that    the   answers    [sought      from   the    witness]       cannot    possibly
    incriminate.'"       United States v. Acevedo-Hernández, 
    898 F.3d 150
    ,
    169 (1st Cir. 2018) (quoting United States v. De La Cruz, 
    996 F.2d 1307
    , 1312 (1st Cir. 1993) (alterations in original)).
    At Vázquez-De León's change-of-plea hearing, he told the
    trial judge that he did not know Forty-Febres. Forty-Febres wanted
    Vázquez-De León to repeat this statement at trial.                          But Mena-
    Varella testified that Forty-Febres and Vázquez-De León were the
    two men who carjacked her.             She identified both men at trial.
    Mena-Varella's testimony directly contradicts any statement that
    Vázquez-De León did not know Forty-Febres.                On the record here, it
    is reasonable to suspect that, at trial, Vázquez-De León would be
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    compelled to testify that he did know Forty-Febres. This testimony
    would   constitute   an   admission    that    Vázquez-De     León   committed
    perjury at his change-of-plea hearing.             The trial judge recognized
    this risk when she said that Vázquez-De León has the "right not to
    have to admit that what he said during the plea is not true" and
    that she could not "expose this defendant to be[ing] charged with
    perjury" by forcing him to testify.          Cf. United States v. Zirpolo,
    
    704 F.2d 23
    , 25 (1st Cir. 1983) ("Given the substantial evidence
    presented at the trial which contradicted the statements in [his]
    affidavit, it was hardly unreasonable for the district court to
    believe it possible that [the witness's] in-court testimony would
    tend to incriminate him of perjury.").
    Forty-Febres's second argument on this point is that the
    district court erred by refusing to delay his trial until after
    Vázquez-De León was sentenced.         We review a refusal to grant a
    continuance   for    abuse   of   discretion.         See   United   States    v.
    Rodriguez-Marrero, 
    390 F.3d 1
    , 22 (1st Cir. 2004).             In our review,
    we do not apply a mechanical test but instead "evaluate each case
    on its own facts."
    Id. (quoting United States
    v. Torres, 
    793 F.2d 436
    , 440 (1st Cir. 1986)).
    Forty-Febres      argues   that    if    the   district   court    had
    delayed the trial and waited until after Vázquez-De León had been
    sentenced, any Fifth Amendment barriers to his testimony would
    have disappeared.     Not so.     Sentencing for the carjackings would
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    not have removed Vázquez-De León's risk of perjuring himself if he
    testified at Forty-Febres's trial.            We have rejected reasoning
    like Forty-Febres's as "overly simplistic" because it "ignores
    what the government might bring up during cross examination that
    the conviction does not shield from criminal liability."         Acevedo-
    
    Hernández, 898 F.3d at 169-70
    (citing 
    Castro, 129 F.3d at 229
    ).
    C.   Alleged Jury Inconsistency
    Forty-Febres's final argument is that, because the jury
    convicted him of the charges related to carjacking Muriel-Colón
    but acquitted him of those related to carjacking Mena-Varella, the
    jury's verdict was inconsistent and his conviction should be
    vacated. We see no inconsistency. But even if we did, the argument
    misses the mark.      As the Supreme Court has stated, "[c]onsistency
    in the verdict is not necessary."       Dunn v. United States, 
    284 U.S. 390
    , 393 (1932); see also United States v. Powell, 
    469 U.S. 57
    , 69
    (1984)   (affirming    Dunn   and   "insulat[ing]    jury   verdicts   from
    review" on inconsistency grounds); United States v. Alicea, 
    205 F.3d 480
    , 484 (1st Cir. 2000). Precedent forecloses Forty-Febres's
    inconsistency argument.
    IV.
    Affirmed.
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