United States v. Vizcarrondo-Casanova ( 2014 )

United States Court of Appeals
For the First Circuit
Nos. 12-1627
12-2119
12-2239
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ VIZCARRONDO-CASANOVA, ERIK DÍAZ-COLÓN,
and CARLOS APONTE-SOBRADO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Steven A. Feldman, with whom Feldman and Feldman was on
brief, for appellant José Vizcarrondo-Casanova.
Paul Camarena, with whom North & Sedgwick Law was on
brief, for appellant Carlos Aponte-Sobrado.
Elaine Mittleman for appellant Erik Díaz-Colón.
José A. Contrera, Assistant United States Attorney, with
whom John A. Mathews II, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia
Rodriguez-Vélez, United States Attorney, were on brief, for
appellee.
August 18, 2014
KAYATTA, Circuit Judge. Criminal defendants José
Vizcarrondo-Casanova, Carlos Aponte-Sobrado, and Erik Díaz-Colón
appeal from convictions related to the carjacking, robbery, and
homicide of Elis Manuel Andrades-Tellería, a drug dealer and rival
to Díaz-Colón. Vizcarrondo-Casanova argues that admission of
evidence of his prior bad acts was impermissible under Federal
Rules of Evidence 404(b) and 403. Aponte-Sobrado argues that the
prosecutor improperly vouched for the truthfulness of the
government's witnesses in his closing argument, and that the
government lacked the authority to prosecute him. Díaz-Colón
argues that three counts of his indictment were constructively
amended, that the government improperly withdrew a plea offer made
to him before trial, and that the jury rendered inconsistent
verdicts on two counts. Though the district court's treatment of
the Rule 403 issue, the government's closing argument, and the
government's understanding of how certain statutes should be
charged in an indictment were all less than ideal, we affirm all
three defendants' convictions.
I. Background
The defendants in this appeal were among twelve people
charged in a single indictment in connection with the kidnapping,
robbery, and death of Andrades-Tellería. The defendants, some of
whom were Puerto Rico police officers, were accused of conspiring
to pose as law enforcement officers carrying out their legitimate
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duties in order to carjack, abduct, and rob Andrades-Tellería. In
May 2008, the defendants, some of whom were in a Puerto Rico Police
Department vehicle, allegedly stopped Andrades-Tellería in his car,
handcuffed him, read him his Miranda rights, and took approximately
fourteen kilograms of cocaine from him. According to cooperating
government witnesses, they then took him and the car to an auto-
body repair shop which was owned by another conspirator and closed
for the day for this purpose. Some conspirators then went to
Andrades-Tellería's house where they stole money, watches, and a
handgun. Meanwhile, Andrades-Tellería was killed, and his body was
dumped early the next morning on a "secluded rural road."
Díaz-Colón, who was described at trial as the ringleader of the
scheme, did not personally participate in the carjacking,
abduction, or homicide.
All three defendants in this appeal were indicted for
conspiracy to commit carjacking. 18 U.S.C. §§ 371, 2119. All
three defendants were also charged with conspiracy 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," in violation of 18 U.S.C. § 241, and with
depriving Andrades-Tellería of his rights under color of law in
violation of 18 U.S.C. § 242. Of the defendants in this appeal,
only Aponte-Sobrado and Vizcarrondo-Casanova were also charged with
carjacking itself.
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At trial, the defendants were convicted on all counts
described above. Vizcarrondo-Casanova was acquitted on an
additional weapons count, and Aponte-Sobrado was acquitted on two
weapons counts. The jury also found that Andrades-Tellería's
death was "proximately, naturally, and foreseeably caused by"
Vizcarrondo-Casanova and Aponte-Sobrado's violation of sections 241
and 242. However, with respect to Díaz-Colón, the jury found that
Andrades-Tellería's death was caused by Díaz-Colón's violation of
section 241, but not his violation of section 242. Each defendant
was sentenced to life in prison. These appeals followed.1
II. Discussion
A. Vizcarrondo-Casanova's Rule 404(b) and 403 Arguments
The district court admitted a substantial amount of
evidence concerning prior criminal conduct some of the defendants
had committed together. The evidence, in summary, included the
following: testimony by codefendant Osvaldo Hernández-Adorno that
he and Vizcarrondo-Casanova planned a robbery together in which
Vizcarrondo-Casanova and another person intended to impersonate FBI
agents; testimony by codefendant Ricardo Herrera-Manino that he and
Vizcarrondo-Casanova pretended to be police officers to intimidate
someone who was stealing from Herrera-Manino's friend, tasered that
person, and committed "many robberies" of other criminals;
1
We attach as an addendum a chart reflecting the charges and
verdicts against each respective appellant.
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testimony by codefendant Romulo Bello-Negrón that he,
Vizcarrondo-Casanova, and others, including other codefendants,
attempted to rob an illegal gambling business while pretending to
be police officers and, on another occasion, pretended to be police
officers when robbing the driver of a car containing "[f]orty-odd"
kilos of cocaine; and testimony by codefendant Noel Rosario-Colón,
a Puerto Rico Police Department officer, that he and
Vizcarrondo-Casanova committed "more than five" robberies in which
they pretended to be police or FBI agents and took drugs or money.
Vizcarrondo-Casanova2 argues on appeal, first, that
Federal Rule of Evidence 404(b) precluded the admission of evidence
of crimes that he had previously committed. He contends, second,
that even if Rule 404(b) did not bar admission of the evidence,
Federal Rule of Evidence 403 rendered the evidence inadmissible.
Vizcarrondo-Casanova properly objected to this evidence before
trial and also when some, but not all, of the evidence was
introduced at trial. For the sake of argument we presume that his
objection was preserved. Cf. United States v. Whitney, 524 F.3d
134, 140 (1st Cir. 2008) (noting that where a district court's
ruling on an evidentiary issue in a motion in limine is not "final"
an objection at trial is needed to preserve the issue for appeal
but also that the argument failed even if preserved). We therefore
2
Each defendant also seeks to join his codefendants'
arguments. Because we ultimately reject each argument, we need not
consider whether these attempts are properly made.
-5-
address each of these claims of evidentiary error for abuse of
discretion. See, e.g., United States v. Mare, 668 F.3d 35, 38 (1st
Cir. 2012).
Under Federal Rule of Evidence 404(b), "[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," but "[t]his evidence may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident." Rule 404(b)'s list of
purposes for which evidence of prior bad acts is admissible is not
exclusive. We have previously held that evidence of prior crimes
may also be admitted under 404(b) in a conspiracy case "to help the
jury understand the basis for the co-conspirators' relationship of
mutual trust." United States v. Escobar-de Jesus, 187 F.3d 148,
169 (1st Cir. 1999). It was on this basis that the district court
admitted the evidence challenged by Vizcarrondo-Casanova. That
determination was not an abuse of discretion because, for the
reasons we discuss below regarding the Rule 403 determination, in
this particular case evidence that the defendants had a substantial
basis to trust each other with their freedom and lives was
certainly relevant to the plausibility of the coordinated conduct
of which the prosecution accused them.
-6-
The Rule 403 question is closer because it asks not just
whether the evidence was relevant for a proper purpose, but also
whether its probative value was "substantially outweighed by a
danger of . . . unfair prejudice." Fed. R. Evid. 403; see also
United States v. Watson, 695 F.3d 159, 165 (1st Cir. 2012).
Nevertheless, the "balancing act" called for by Rule 403 "'is a
quintessentially fact-sensitive enterprise, and the trial judge is
in the best position to make such factbound assessments.'" Watson,
695 F.3d at 165 (quoting Udemba v. Nicoli, 237 F.3d 8, 15-16 (1st
Cir. 2001)). Therefore "'[o]nly rarely and in extraordinarily
compelling circumstances will we, from the vista of a cold
appellate record, reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect.'" Id. at 165-66 (alteration in original).
The quantity of evidence admitted here strikes us as
cumulative. It also borders on overshooting the reach of the
reasons given for its probative force, in that it includes more
details of the prior crimes than were necessary to establish that
the defendants had reason to trust one another. The district
court's judgment to the contrary, however, is not so far beyond the
pale as to constitute the type of "exceptional circumstance[]" that
calls for reversal based on such an evidentiary ruling. United
States v. Houle, 237 F.3d 71, 77 (1st Cir. 2001). That is so
because this is an unusual case in which the crime as charged
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required planning, coordination, and implementation by several
corrupt law enforcement officers with several violent criminals.
Opportunities for betrayal were rife, and ran in multiple
directions. Were the cops really dirty? Were the crooks playing
only for the home team? A powerful argument can be made that any
particular defendant would not have knowingly participated in such
a risky undertaking unless he had good reason to trust the
reliability and competence of the others. In short, this is a case
in which the existence and origins of trust among the conspirators
is especially relevant.
Our decision in United States v. Varoudakis, 233 F.3d 113(1st Cir. 2000), in which we held that the district court abused
its discretion under Rule 403 by admitting evidence we held to be
relevant under Rule 404(b), is not to the contrary. In Varoudakis,
evidence of a prior crime served only to make more plausible a
witness's claim that the defendant revealed to her a later crime.
Id. at 120-21. In short, it bolstered credibility. Here, the
probative thrust of the evidence of the prior crimes made more
plausible the very notion that so many oppositionally employed
people would and could coordinate their efforts to attempt the
particular crime. Additionally, the record reveals in this case no
obvious alternative to establish the existence of trust. In
Varoudakis, by contrast, the government did not need evidence of
the prior crime to demonstrate the existence of a relationship of
trust because it had ample other means to demonstrate the same
-8-
thing, including the fact that the witness and the defendant had
been in a romantic relationship for a decade and cohabited for six
of those years. Id. at 122-25. Reaffirming without reservation
our decision in Varoudakis, we nevertheless conclude that the
admission of evidence of prior shared criminal conduct among groups
of the defendants charged in this case is easily defensible and
that admitting the quantity and type of that evidence admitted here
fell within the outer reaches of the trial judge's broad Rule 403
discretion.
B. Aponte-Sobrado's Arguments
1. Vouching
Aponte-Sobrado argues that the prosecutor improperly
vouched for the government's witnesses by saying that the
inconsistencies in their statements showed that the government had
not coached them about how to lie. Vouching occurs when a
prosecutor "places the prestige of her office behind the
government's case by, say, imparting her personal belief in a
witness's veracity or implying that the jury should credit the
prosecution's evidence simply because the government can be
trusted." United States v. Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir.
2003). Aponte-Sobrado challenges the following statement made by
the prosecutor in his rebuttal argument at the conclusion of the
trial:
And let me tell you something about all this to-do about
inconsistent statements. That actually shows they were
-9-
credible. The Government could have put--they could have
put all the cooperators in a room and say: Let's get this
story straight. Work it out. You guys, all five of you,
get in that room and you come out with a story that's
consistent. I don't want you leaving that room until the
story's consistent so the jury knows you're telling the
truth.
Of course, the Government knew that the versions were
going to conflict. Because that's life. You know, you
don't tell a story three years later and have the story
miraculously just be the same story unless they've been
influenced. Unless, again, they've been put in a room to
get their stories straight. And you get in there, you
tell the truth. You get in there, you make sure you tell
this fabricated story that we have planned.
Aponte-Sobrado failed to preserve his challenge to this
statement because, though the defense did object to several prior
statements in the prosecution's rebuttal argument on vouching
grounds, causing the prosecutor to purport to withdraw them before
the district court ruled,3 the defense made no objection to the
3
Those other statements were:
[Prosecutor:] But let me tell you something else. They
know (indicating) if they do not tell the truth they're
not going to jail for 30 years, they're going to jail for
life. Forever, no possibility of parole, do not collect
$200. Life. That's not an incentive to lie, that's an
incentive to tell the truth. And every cooperator
testified, even Alexis who's free on bond, said that.
Life. Forever. You miss one step on that witness stand,
life. You think the Government, these prosecutors, are
going to file a motion for downward departure if --
[Defense Counsel]: Objection, Your Honor. He's
vouching. He's vouching.
[Prosecutor]: I said "the Government," Your Honor. I'll
withdraw the comment "these prosecutors." That comment's
withdrawn.
Do you think the Government is going to file a motion for
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subsequent statement he now challenges on appeal. Aponte-Sobrado
argues that, while the defense did not object immediately, it did
lodge an objection as soon as the government concluded its closing.
Assuming (without deciding) that that objection was timely, even it
did not challenge the specific statement at issue in this appeal.
We therefore review Aponte-Sobrado's vouching argument for plain
error. See, e.g., United States v. Landry, 631 F.3d 597, 606 (1st
Cir. 2011). "To show plain error, a defendant must show that an
error occurred, which was clear and obvious; and that it affected
defendant's substantial rights and seriously impaired the fairness,
integrity or public reputation of the public proceedings." United
States v. Vázquez-Rivera, 407 F.3d 476, 480 (1st Cir. 2005).
"The line between the legitimate argument that a
witness's testimony is credible and improper 'vouching' is often a
hazy one, to be policed by the trial court in the first instance."
United States v. Innamorati, 996 F.2d 456, 483 (1st Cir. 1993)
downward departure if there's a scintilla of evidence
that these witnesses have not told the truth? Have not
testified --
[Defense Counsel]: Your Honor, that's vouching.
[Prosecutor]: I withdraw "not tell the truth."
Have not testified untruthfully? [sic] It's not going
to happen. It is not going to happen.
It is by no means clear that the prosecutor actually withdrew the
aspects of his remarks to which objection was actually lodged, but
in any event no argument to that effect was raised below or in the
briefs on appeal.
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(affirming, on plain error review, a conviction where the
prosecutor's remarks fell into a "grey area"). For example, in
Pérez-Ruiz we held on plain error review (describing previous cases
to the contrary as dicta) that it was proper for the government to
argue that "'[i]f [the witnesses] were all going to get up and make
up a story, wouldn't it have been a better story?'" 353 F.3d at 9.
Similarly, we have held to be proper a prosecutor's statement that
"when you consider are these people making up stories, couldn't
they have made up a better story? They've been in jail for four
years . . . . They had all the time in the world, but that was not
the case." Vázquez-Rivera, 407 F.3d at 483-84.
While the prosecutor unwisely put his toes up to the
line, if there was error it was not "clear and obvious." Although
one might read into the rebuttal here a suggestion that the
government itself concluded that the stories were credible, it is
far from clear that jurors would have inferred such a suggestion.
Defense counsel also pretty much invited the rebuttal, pointing out
inconsistencies in the witnesses' testimony, suggesting they showed
that the witnesses were lying, and directly accusing the
prosecution of being "kind of greedy" in bringing such testimony to
the jury. On the whole, it was not clear that the rebuttal strayed
too far beyond "a logical counter to the assertions of defense
counsel, made in summation, that various government witnesses had
fabricated their testimony." Pérez-Ruiz, 353 F.3d at 10.
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We also doubt whether, even if the prosecutor's remarks
were clearly and obviously improper, they "affected defendant's
substantial rights and seriously impaired the fairness, integrity
or public reputation of the public proceedings," another necessary
element of a successful plain error argument. Vázquez-Rivera, 407
F.3d at 480. We have previously noted that "the potential for harm
from vouching varies, and it is likely to be more dangerous 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). Here, there was no such "flaunt[ing]," no
implication of secret knowledge, an instruction telling the jury
that statements from closing arguments are not evidence, and no
other circumstances which would lead us to find that the potential
for harm from the prosecutor's comments was sufficient to justify
reversal on plain error review.
2. Authority to Prosecute
In a supplemental pro se brief, Aponte-Sobrado claims
that because "the FBI chose not to swear out a complaint in this
case, government attorneys lacked authority under 28 U.S.C. § 547
to seek an indictment or prosecute on behalf of the 'United
States'" and that a prosecution under such circumstances also
violates the "Take Care" Clause of Article II, Section 3 of the
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United States Constitution, and Federal Rules of Criminal Procedure
3 and 4. The record contains no evidence about whether a criminal
complaint was sworn in this case. A complaint, however, is not a
prerequisite to the initiation of a criminal prosecution:
No complaint is needed . . . if a more formal
determination of probable cause is made first. If an
indictment has been returned or an information filed
prior to the arrest, a warrant may be issued on this
ground alone pursuant to Rule 9. In such a case,
probable cause has already been established and there is
no need for a complaint.
1 Charles Alan Wright et al, Federal Practice and Procedure § 41
(4th ed. 2014) (footnotes omitted).
C. Díaz-Colón's Arguments
Díaz-Colón, through his attorney and in several pro se
supplemental briefs, argues that: (1) his indictment was
constructively amended because the jury instructions and verdict
form, but not the indictment, specified that he was being charged
with the "death resulting" form of the offenses described in
sections 241 and 242; (2) his indictment was constructively amended
on the conspiracy to commit carjacking count; (3) the government
improperly withdrew a plea offer it made to him before trial; and
(4) the jury verdicts on two of his counts of conviction were
inconsistent.
1. Constructive Amendment of the Deprivation of Rights
Counts
Díaz-Colón first argues that the counts of his indictment
charging him with violating 18 U.S.C. §§ 241 and 242 were
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constructively amended. Section 241 provides, in pertinent part,
that:
If 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,
or because of his having so exercised the same; . . .
They shall be fined under this title or imprisoned not
more than ten years, or both; and if death results from
the acts committed in violation of this section or if
such acts include kidnapping or an attempt to kidnap,
. . . they shall be fined under this title or imprisoned
for any term of years or for life, or both, or may be
sentenced to death.
Section 242, similarly, provides, in pertinent part, that:
Whoever, under color of any law . . . willfully subjects
any person . . . to the deprivation of any rights,
privileges, or immunities secured or protected by the
Constitution or laws of the United States . . . shall be
fined under this title or imprisoned not more than one
year, or both; and if bodily injury results from the acts
committed in violation of this section or if such acts
include the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire, shall be fined
under this title or imprisoned not more than ten years,
or both; and if death results from the acts committed in
violation of this section or if such acts include
kidnapping or an attempt to kidnap . . . shall be fined
under this title, or imprisoned for any term of years or
for life, or both, or may be sentenced to death.
It has been crystal clear for at least the last fourteen
years that "'any fact (other than prior conviction) that increases
the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt.'"
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v.
United States, 526 U.S. 227, 243 n.6 (1999)). Such aggravating
factors are "treated . . . like" elements of the aggravated
-15-
offense. See Washington v. Recuenco, 548 U.S. 212, 214-221 (2006).
Section 241, therefore, effectively contains two separate offenses:
conspiracy against rights (with a maximum sentence of ten years),
and conspiracy against rights with at least one of several other
factors present, including that death resulted (with a maximum
penalty of death or life in prison). Section 242, in turn,
contains three separate offenses: deprivation of rights (with a
maximum sentence of one year), deprivation of rights resulting in
bodily injury or involving "a dangerous weapon, explosives, or
fire" (with a maximum sentence of ten years), and deprivation of
rights with death resulting or involving one of several other
listed factors (with a maximum punishment of death or life in
prison).
Turning to the indictment, we look first to see which of
these various levels of the offense were charged. Díaz-Colón's
indictment simply alleged, with respect to the section 241
conspiracy count, that he "did willfully conspire and agree . . .
to injure, oppress, threaten and intimidate [Andrades-Tellería] in
the free exercise and enjoyment of rights secured to him by the
Constitution and laws of the United States." It then went on to
detail the "manner and means" of the conspiracy, but these details
did not include Andrades-Tellería's death. With respect to the
section 242 count for the acts committed, the complaint alleged
that Díaz-Colón and the other defendants "acting under color of
laws . . . did wilfully deprive [Andrades-Tellería] of rights and
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privileges secured and protected by the Constitution and law of the
United States."
Accordingly, Díaz-Colón was indicted for only the base
level offense under both statutes, and proof that the conspiracy or
acts resulted in anyone's death was not necessary. At trial, the
court nevertheless instructed the jury that if it concluded that
any particular defendant violated section 241, it should then
decide whether death resulted from that violation. The court also
instructed the jury that to convict a defendant under section 242
it needed to find that he deprived Andrades-Tellería of his rights
under color of law and caused him bodily injury. The court also
instructed the jury that if it concluded that any particular
defendant violated section 242, it should then decide whether death
resulted from that violation. In sum, the indictment charged only
the base level offense under both sections 241 and 242, but the
court charged the jury that the section 242 count included as an
element the causation of bodily injury, and that it should also
separately determine whether death resulted from any violation it
found of section 241 or 242.
When a defendant is indicted for one crime but the jury
is then instructed that it may convict him of a crime requiring
proof of an additional element, we call that change a "constructive
amendment" of the indictment. See United States v. Brandao, 539
F.3d 44, 57 (1st Cir. 2008) ("A constructive amendment occurs when
the charging terms of an indictment are altered, either literally
-17-
or in effect, by prosecution or court after the grand jury has last
passed upon them." (internal quotation marks omitted)).
Constructive amendments are forbidden so as "to preserve the
defendant's Fifth Amendment right to indictment by grand jury, to
prevent re-prosecution for the same offense in violation of the
Sixth Amendment, and to protect the defendant's Sixth Amendment
right to be informed of the charges against him." Id.
Because Díaz-Colón's indictment specified only the base
level offense under sections 241 and 242, there can be no question
that his indictment was constructively amended when the jury was
instructed on the bodily injury and death resulting forms of the
crime. See United States v. Lnu, 544 F.3d 361, 369 (1st Cir. 2008)
("In determining whether there has been constructive amendment of
the indictment, we generally evaluate whether the defendant has
demonstrated that 'the alleged alteration in the indictment did in
fact change the elements of the offense charged . . . .'"). We are
surprised, therefore, that the government suggests otherwise,
citing Catala Fonfrias v. United States, 951 F.2d 423 (1st Cir.
1991), for the proposition that First Circuit "has addressed the
construction of 18 U.S.C. § 242 and rejected the notion that there
are three separate offenses within the statute." The government
repeated this claim at oral argument, asserting that section 242
"charge[s] one offense" with "enhancements based on the type of
harm that was caused."
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This reliance is doubly mistaken. First, Catala Fonfrias
addressed whether convicting a defendant of violating the death-
resulting forms of sections 241 and 242 violated his right against
double jeopardy, not what parts of those sections needed to be
proved to a jury. Id. at 425-26. Second, and more important,
even though some dicta in Catala Fonfrias suggests that section 242
contains only a single offense, such an interpretation of the
statute is simply not possible after the subsequent decisions in
Apprendi and Recuenco made clear that factors that increase the
maximum sentence are elements of the charged offense. Therefore,
to indict a person for the form of the offense resulting in a
lesser maximum sentence and then convict him of the enhanced
offense with a higher maximum sentence is to constructively amend
the indictment. Cf. Lnu, 544 F.3d at 369.
It does not follow, however, from the fact that Díaz-
Colón's indictment was constructively amended that his conviction
must be vacated or reversed. Because Díaz-Colón did not challenge
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the constructive amendment at trial4 we review it only for plain
error. Brandao, 539 F.3d at 57. As we have already noted, there
was error here and it was plain to anyone who read the indictment
and knew the basic law. However, reversal for plain error
requires, as well, a finding that the error prejudiced the
defendant. Id. at 60. Díaz-Colón makes no claim of surprise or
of prejudice in planning or maintaining a defense. Indeed, the
lack of objection suggests that defense counsel (in the context of
a case in which death clearly resulted from the charged acts)
assumed that the indictment was broader than it was. This is
especially so given the plainly obvious (and unobjected to)
inclusion of a specific question in the verdict form about whether
death resulted. In any event, the record is clear that
Andrades-Tellería's death indisputably resulted from the conspiracy
charged.
4
Díaz-Colón did later raise the issue at sentencing. Some
of our precedent says that a defendant may preserve an objection to
instructions that describe a lower level of the offense than that
alleged in the indictment by raising the objection at sentencing.
See United States v. Pérez-Ruiz, 353 F.3d 1, 14 (1st Cir. 2003);
United States v. Nelson-Rodriguez, 319 F.3d 12, 47 (1st Cir. 2003).
Those cases, however, are premised on the proposition that a
defendant is not obligated to request an instruction that could
result in higher punishment than the instruction proposed by the
government. Even assuming that that rationale makes sense as a
matter of fact and procedure, and should remain good law, it would
not be applicable here. Rather, Díaz-Colón argues that the jury
instructions exposed him to a punishment higher than that available
for the crime charged in his indictment. He therefore needed to
object at the jury instruction stage to preserve his argument on
appeal.
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Given this record, the only prejudice to which Díaz-Colón
points is the possibility that the jury itself experienced
"confusion about the elements charged and instructed to [it]."
Reviewing the jury verdict form and related jury instructions we
see no "reasonable probability," United States v. Dominguez
Benitez, 542 U.S. 74, 81-82 (2004) (internal quotation marks
omitted), of any confusion that could have affected the outcome of
the trial. The verdict form separately asked two questions about
each defendant for each of count five and count six. First, it
asked whether the defendant was guilty of the offense5 charged in
the indictment. Second, if the jury found the defendant guilty
when answering the first question, the verdict form also required
it to say whether it also found that the defendant caused
Andrades-Tellería's death. The jury therefore could not have been
confused about what it was finding, nor could anyone misread its
verdict. Díaz-Colón's very limited prejudice argument, and with it
his constructive amendment claim, therefore fails on plain error
review.
5
Díaz-Colón also notes that the jury was instructed that to
convict on the base level offense under count six it had to find
that bodily injury resulted, which is an element of the
intermediate form of section 242, not the base level. The verdict
form, however, gave the jurors only two choices: the base level
offense, and the death-resulting form. If the jurors incorrectly
believed they needed to find bodily injury to convict for the
former, that could only have helped Díaz-Colón.
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2. Purported Constructive Amendment on the Conspiracy to
Commit Carjacking Count
In addition to charging Díaz-Colón under sections 241 and
242 with conspiring to deprive and depriving Andrades-Tellería of
his rights, the indictment also charged Díaz-Colón with a
conspiracy offense under 18 U.S.C. § 371, which provides as
follows:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be
fined under this title or imprisoned not more than five
years, or both.
If, however, the offense, the commission of which is the
object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
As the statutory language makes clear, while section 371
provides a lower penalty when the object of the conspiracy is a
misdemeanor, it does not differentiate between types or severity of
felonies. Certainly an indictment for violating section 371 by
committing an "offense against the United States" must specify the
underlying offense that is the subject of the conspiracy. But
where that offense has both lesser included and enhanced forms, all
of which are felonies, proof of the lesser included form of the
offense results in no different penalty than proof of the enhanced
form. Allegations of elements that would result in enhanced
penalties on a charge of committing the underlying offense itself
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are thus entirely unnecessary to support a charge of violating
section 371.
Here, inexplicably, the indictment nevertheless charged
as the offense that was the aim of the conspiracy not simply
carjacking, under 18 U.S.C. § 2119(1), but carjacking resulting in
death under section 2119(3).6 Having thus unnecessarily undertaken
to prove the enhanced form of the offense charged as the aim of the
conspiracy, the government then successfully proposed jury
instructions that can best be read as allowing the jury to convict
if it found only that Díaz-Colón conspired to commit the base
form.7 The verdict form, in turn, asked only whether Díaz-Colón
6
Section 2119 provides that:
Whoever, with the intent to cause death or serious 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,
shall--
(1) be fined under this title or imprisoned not more than
15 years, or both,
(2) if serious bodily injury . . . results, be fined
under this title or imprisoned not more than 25 years, or
both, and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.
7
Specifically, the jury instructions read, inter alia:
For you to find the defendants guilty of this conspiracy,
you must be convinced that the government has proven each
of the following things beyond a reasonable doubt:
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was guilty of "the charge in Count One of the Superseding
Indictment, conspiracy to commit the crime of carjacking." As the
government's ambition thus waxed and waned, Díaz-Colón made no
objection to any of this at trial. On appeal, he now seeks
reversal of his conviction because, he says, he was convicted on a
count for which he was not indicted. We review for plain error.
See, e.g., Brandao, 539 F.3d at 60-62.
As we noted above, the element (death resulting)
contained in the indictment but omitted from the instructions and,
arguably, the verdict form, was entirely immaterial to a section
371 charge in that the maximum and minimum sentences remained the
same whether the enhanced or lesser included form of the carjacking
offense was proven. While there was clearly a mistake in drafting
the indictment, it was not a mistake that resulted in any
prejudicial error. Cf. United States v. Mubayyid, 658 F.3d 35,
48-54 (1st Cir. 2011) ("In general, a defendant can hardly be heard
to complain when the government's proof at trial establishes a
scheme similar to but somewhat narrower in breadth and malignity
First, that the agreement specified in the indictment,
and not some other agreement or agreements, existed
between at least two people to commit carjacking; and
Second, that the defendants willfully joined in that
agreement; and
Third, that one of the conspirators (not necessarily one
of the defendants) committed an overt act during the
period of the conspiracy in an effort to further the
purpose of the conspiracy.
-24-
than that charged in the indictment." (internal quotation marks
omitted)). Indeed, Díaz-Colón's own counsel does not argue that
the difference between the indictment and instructions, no matter
how characterized, prejudiced him. That fact alone defeats his
argument on plain error review. See, e.g., United States v.
García-Pastrana, 584 F.3d 351, 386 (1st Cir. 2009) (no plain error
in jury instructions where defendant did not show he was
prejudiced).8
3. Withdrawal of the plea offer
In one of his supplemental pro se filings Díaz-Colón
argues that the government improperly withdrew a plea offer it had
made to him in March 2011. The final version of the proposed plea
agreement was emailed to Díaz-Colón's counsel on March 28, 2011,
and provided that Díaz-Colón could accept the government's plea
offer by submitting a motion to change his plea, which he duly did
on June 2, 2011. A change of plea hearing was scheduled for June
8
Díaz-Colón's brief might also be read to suggest that the
jury instructions on count one were inadequate because they failed
to inform the jury of the elements of carjacking. This argument
fails because the elements of carjacking were included in count
two. Díaz-Colón cites no authority for the proposition that when
a jury is instructed both on a crime and on conspiracy to commit
that crime the instructions on the elements of that crime must be
included twice, once in the instructions on each count. Although
such duplicate instructions might be advisable in some complex
cases, requiring them, at least in a case like this one, would cut
against our normal practice of considering jury instructions "as a
whole to determine whether they correctly summarize the relevant
law." United States v. Brown, 669 F.3d 10, 30 (1st Cir. 2012)
(internal quotation marks omitted). There was therefore no error
in the instructions the district court gave.
-25-
7, but continued to June 15. Either the day before the change of
plea hearing or at it (the parties disagree and the record is not
clear) the government withdrew its offer. According to the court's
minute order, at the hearing the government informed the court that
it was withdrawing the plea because it had received new evidence
about Díaz-Colón's involvement in the crime. The court ordered
briefing on the question of whether the government could withdraw
its offer, ultimately ruling that it could. Díaz-Colón's plea
remained not guilty.
Díaz-Colón argues first that the government's withdrawal
of its plea offer violated his due process rights, and, second,
that he was entitled to specific performance of the plea agreement
under contract law. Díaz-Colón's due process argument fails
because he "did not enter a guilty plea, did not forgo a jury trial
on any charge, and did not otherwise detrimentally rely on the
government's promise . . . [and therefore h]e is in no worse
position than if no offer had ever been made by the government."
United States v. Papaleo, 853 F.2d 16, 18 (1st Cir. 1988). He
therefore had no constitutional right to enforce the plea bargain.
Id. at 19.
The failure of Díaz-Colón's constitutional argument,
though, does not foreclose his contract argument. "While plea
agreements are a matter of criminal jurisprudence, most courts,
including this one, have held that they are also subject to
-26-
contract principles." Id. In Papaleo, like this case, a defendant
sought to compel the government to abide by a plea offer it made
and the defendant accepted (by signing it, in that case) but which
it withdrew before he in fact pled guilty. Id. at 17-18. We
refused to enforce the agreement on contract principles because it
lacked mutuality of obligation as "nowhere in the plea agreement
[was] there an explicit promise by Papaleo to do anything," an
omission that was "understandable in light of the fact that a court
cannot force a defendant to plead guilty because of a promise in a
plea agreement." Id. at 19 (citing Fed. R. Crim. P. 11).
We recognized, nonetheless, that "two parties may enter
into a contract, even though the agreement lacks 'mutuality of
obligation' because one party's promise is unenforceable by rule of
law." Id. For that proposition we cited, inter alia, Restatement
(Second) of Contracts § 78 (1981), which provides that "[t]he fact
that a rule of law renders a promise voidable or unenforceable does
not prevent it from being consideration," and section 79, which
provides that lack of mutuality of obligation does not prevent
contract formation where there is consideration. However, we also
reasoned that, because "[w]e must assume . . . that the government
acted rationally . . . [a]bsent more explicit promissory language,
we will not read the ambiguous language of the 'agreement' as
containing bilateral promises such as to bind the government to a
contract unenforceable against the other party." Id. at 19-20.
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In other words, absent evidence to the contrary, we will
not assume that the government has bound itself contractually to
offer a particular plea even if it discovers new information before
the change of plea hearing. Instead, unless a plea agreement
states otherwise, we will presume that the agreement itself simply
documents "an offer by the government: if the defendant pleads
guilty and if that plea is accepted by the court, then the
government will perform as stipulated in the agreement." Id. at
20. However, "[u]ntil performance [takes] place by [the
defendant], the government [is] free to withdraw its offer." Id.
In short, the obligation to perform is conditional on actual
performance by the defendant (or perhaps some other form of
detrimental reliance).9 Other circuits have taken the same
approach. See United States v. Norris, 486 F.3d 1045, 1051-52 (8th
Cir. 2007) (mentioning "the general rule that the court must have
accepted a guilty plea before the parties may be bound to an
associated plea agreement"); United States v. Savage, 978 F.2d
1136, 1138 (9th Cir. 1992) ("[N]either the defendant nor the
government is bound by a plea agreement until it is approved by the
court.").
9
Díaz-Colón suggests that his case can be distinguished from
Papaleo because the government's offer to him, unlike the offer in
Papaleo, said that he could accept it by filing a change of plea
motion. In both cases, however, the defendant would not have been
bound until a plea was actually entered and so we see no reason to
think the government intended to bind itself without any assurance
it would get something in return.
-28-
Díaz-Colón points to no case in which the government has
been precluded from abandoning a plea agreement when the defendant
has not yet pled guilty or otherwise detrimentally relied on the
government's offer. He suggests only that merely by filing a
change of plea motion he relied on the government's offer. That
may be right, but there is no reason to think that filing that
motion was detrimental to him. Two weeks separated his acceptance
of the plea offer and the government's decision to withdraw it, and
the trial did not occur for more than another month after the
withdrawal. Nor did Díaz-Colón apparently see any need to seek
more time to prepare for trial. The district court was therefore
correct that the plea agreement had not yet become unconditional,
and that the government was therefore permitted to withdraw it,
given the absence of any detrimental reliance at all.
4. Inconsistent Jury Verdicts
The jury verdict form for counts five, conspiracy against
rights, 18 U.S.C. § 241, and six, deprivation of rights under color
of law, 18 U.S.C. § 242, included a special interrogatory for each
count. That special interrogatory, posed separately for each
defendant and to be answered only if the jury found the defendant
guilty of the underlying crime, asked whether death resulted from
that violation. As to Díaz-Colón, the jury answered yes on count
five, but no on count six. Díaz-Colón argues that no rational jury
could give this set of answers. That may be right, but logically
-29-
inconsistent jury verdicts on multiple counts are not grounds for
reversing a conviction because of "the Government's inability to
invoke review" of inconsistent verdicts in its favor, "the general
reluctance [of courts] to inquire into the workings of the jury,"
and the fact that inconsistent verdicts could be explained as a
"possible exercise of lenity" by the jury on one count. See United
States v. Powell, 469 U.S. 57, 68-69 (1984).
Díaz-Colón attempts to distinguish Powell on the grounds
that it concerned inconsistent verdicts on two separate crimes with
the same underlying facts while he challenges inconsistent answers
to the same interrogatory in connection with two counts. Even if
that were a coherent distinction, which we doubt, none of the
reasons Powell cited for its ruling apply with any less force in
this situation. We are especially unwilling to find an exception
to Powell because the Court noted that its ruling was simply a
reaffirmation of the rule announced in Dunn v. United States, 284
U.S. 390 (1932), and explicitly criticized appeals courts which had
announced exceptions to that rule, holding that Dunn should remain
"without exception." Powell, 469 U.S. at 69.
III. Conclusion
For the foregoing reasons the judgment of the district
court is affirmed.
So ordered.
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ADDENDUM
Count Charge Vizcarrondo- Aponte- Díaz-Colón
Casanova Sobrado
1 Conspiracy to commit Guilty Guilty Guilty
carjacking
18 U.S.C. §§ 371,
2119(3)
2 Carjacking Guilty Guilty Not
18 U.S.C. §§ 2119, 2 Charged
3 Brandishing a firearm Not Guilty Not Not
in furtherance of a Guilty Charged
crime of violence
18 U.S.C. §§
924(c)(1)(A)(ii), 2
5 Conspiracy against Guilty Guilty Guilty
rights
18 U.S.C. § 241
Death resulting? Yes Yes Yes
6 Deprivation of rights Guilty Guilty Guilty
under color of law
18 U.S.C. § 242
Death resulting? Yes Yes No
8 Possession by a felon Not Charged Not Not
of a firearm Guilty Charged
convicted felon
18 U.S.C.A. §§
922(g)(1), 924(a)(2)
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