United States v. Pena-Lora

United States Court of Appeals
For the First Circuit
No. 99-1024
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LUIS MANUEL PEÑA-LORA,
Defendant, Appellant,
No. 99-1236
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JORGE LORENZO-HERNÁNDEZ,
Defendant, Appellant,
No. 99-1237
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
THOMAS LORENZO-PÉREZ,
Defendant, Appellant,
No. 99-1238
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LORENZO PEÑA-MORFE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.
Rafael F. Castro-Lang, with whom Graham A. Castillo and Luz
M. Rios-Rosario were on brief for appellant Lorenzo-Pérez.
Luz M. Ríos-Rosario, with whom Rafael F. Castro-Lang and
Graham A. Castillo were on brief for appellant Peña-Morfe.
Graham A. Castillo, with whom Rafael F. Castro-Lang and Luz
M. Ríos-Rosario were on brief for appellant Peña-Lora.
Michael J. Cruz for appellant Lorenzo-Hernández.
Michelle Morales, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief for
appellee.
3
September 1, 2000
4
CYR, Senior Circuit Judge. Appellants challenge the
convictions and sentences imposed for their respective roles in
an armed hostage-taking which took place in the District of
Puerto Rico in 1997. For the most part, but see infra Sections
II.A.2.b & II.D, their appeals fail.
I
BACKGROUND
On August 17, 1997, appellant Peña-Morfe and a person
called “Charlie” abducted Richardson Leo Mieses-Pimentel at
gunpoint as he was leaving the Chris Café, a place of business
owned by his family. The abductors placed a hood over the
victim’s head, handcuffed him, and transported him to a private
residence, where he was interrogated regarding his family’s
financial resources, then informed that his abductors intended
to demand a $500,000 ransom from the family. Throughout the
ensuing ten-day captivity, Mieses-Pimentel was continually
blindfolded, forcibly restrained (i.e., handcuffed in a bathtub
or chained to a bed), and repeatedly threatened with death.
Following three days of captivity at the initial site, during
which the captors unsuccessfully phoned Mieses-Pimentel’s family
to negotiate a ransom, another accomplice — Santiago Acosta-
Molina — was recruited and Mieses-Pimentel was relocated at
nighttime to the Acosta-Molina residence.
5
During the ensuing captivity, Acosta-Molina observed
Peña-Morfe, Lorenzo-Pérez and Peña-Lora toting various weapons,
including revolvers, while placing phone calls to Mieses-
Pimentel’s family. At one point, Lorenzo-Pérez threatened the
newly recruited accomplice, Acosta-Molina, with an UZI
submachine gun, which he referred to as “The Silencer” used “for
the people who talk.” Throughout this period of captivity, the
three defendants repeatedly assaulted Acosta-Molina with blows
to the face and chest.
Three days later, at Acosta-Molina’s insistence, the
original captors relocated Mieses-Pimentel to a residence in
Barrio Obrero, informing him that he was being taken to the
place where he would be killed. Upon arrival at this third
residence, Mieses-Pimentel was handcuffed, blindfolded, and
chained to a bed in a rear bedroom.
At about the same time, an INS agent recognized Peña-
Morfe’s voice from an FBI tape of a ransom call to the victim’s
family. After arranging a meeting with Peña-Morfe, the INS
agent placed him under arrest. Peña-Morfe admitted his
participation in the abduction and led the FBI to the third
residence, where Mieses-Pimentel was being held hostage.
An FBI SWAT team surrounded the residence, demanding
that its occupants surrender. At this point in time — having
6
been relieved of the blindfold and handcuffs by his captors —
Mieses-Pimentel saw someone running toward the rear of the
residence carrying firearms (including a machinegun). Then he
was escorted to a different room at the rear of the residence,
where he remained in the custody of appellant Lorenzo-Hernández,
Raimary Lavandier (who was carrying a baby), and a male youth
whose identity was not disclosed at trial.
Ultimately, Raimary Lavandier and the unidentified male
youth abandoned Mieses-Pimentel, exited the residence, and
submitted to arrest by the FBI. A subsequent search disclosed
two revolvers and an UZI machinegun secreted in the backyard of
the residence.
The four appellants, as well as Acosta-Molina and
Lavandier, were indicted for conspiring to commit a hostage-
taking for ransom (Count 1), see 18 U.S.C. § 1203 (a), and for
aiding and abetting the hostage-taking (Count 2), see id. & § 2.1
1 The statute provides:
[W]hoever, whether inside or outside the
United States, seizes or detains and
threatens to kill, to injure, or to continue
to detain another person in order to compel
a third person or a governmental
organization to do or abstain from doing any
act as an explicit or implicit condition for
the release of the person detained, or
attempts or conspires to do so, shall be
punished by imprisonment for any term of
years or for life and, if the death of any
7
Peña-Morfe and Lorenzo-Pérez jointly were charged with using or
carrying firearms during and in relation to a crime of violence
(viz., the hostage-taking) (Count 3). See 18 U.S.C. §
924(c)(1).2 Finally, Peña-Morfe, Lorenzo-Hernández, and Lorenzo-
Pérez were jointly charged, in Count 4, with using or carrying
three weapons: two .357 revolvers and an Israeli semiautomatic
9 mm UZI. See id. § 924(c)(1) & (2). Pursuant to a plea
person results, shall be punished by death
or life imprisonment.
18 U.S.C. § 1203(a).
2The statute provides, in pertinent part:
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime (including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use
of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a
court of the United States, uses or carries
a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in
addition to the punishment provided for such
crime of violence or drug trafficking crime
. . . be sentenced to a term of imprisonment
of not less than 5 years . . . . If the
firearm possessed by a person convicted of a
violation of this subsection . . . is a
machinegun or a destructive device, or is
equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to a
term of imprisonment of not less than 30
years.
18 U.S.C. § 924(c).
8
agreement with the government, Acosta-Molina was required to
testify against appellants at trial.
A superseding indictment modified the firearm counts
as follows: Count 4 charged Peña-Lora with using or carrying a
firearm; Count 5 charged Lorenzo-Hernández and Lorenzo-Pérez
with using or carrying firearms, “specifically a fully-automatic
9 millimeter UZI, serial number UP00514, as defined in 18
U.S.C., Section 921(a)(23) and 26 U.S.C., Section 845(b), a
Ruger .357 revolver, serial number 153191995, and a Smith &
Wesson .357 revolver, serial number 90922c-19"; Count 6 charged
Raimary Lavandier with failing to report and/or concealing a
federal crime. See 18 U.S.C. § 4.
After Acosta-Molina and Mieses-Pimentel testified for
the government at trial, guilty verdicts were returned against
each defendant on every count charged in the superseding
indictment. Following sentencing, Peña-Morfe, Lorenzo-Pérez,
Lorenzo-Hernández, and Peña-Lora filed timely notices of appeal
from their respective convictions and sentences.
II
DISCUSSION
A. Sufficiency of the Evidence
Appellants claim the government failed to present
sufficient evidence to establish either the hostage-taking or
9
firearms counts. See Fed. R. Crim. P. 29; supra notes 1 & 2.
We must affirm the jury verdicts unless the evidence and all
reasonable inferences, viewed in the light most favorable to the
government’s case, would not enable a rational jury to find each
element of the charged offenses beyond a reasonable doubt, see
United States v. Hughes, 211 F.3d 676, 681 (1st Cir. 2000), even
though the prosecution may not have “‘present[ed] evidence that
preclude[d] every reasonable hypothesis inconsistent with
guilt.’” Id. (citation omitted).
1. Peña-Morfe, Lorenzo-Pérez and Peña-Lora
Peña-Morfe, Lorenzo-Pérez and Peña-Lora acknowledge
that cooperating defendant Acosta-Molina presented graphic
eyewitness testimony unambiguously identifying and implicating
each of them in the hostage-taking. Moreover, Acosta-Molina
unambiguously linked each to the use or carrying of the various
firearms. Accordingly, these three defendants are limited to
the familiar appellate refrain that their trial jury rationally
could not have credited the testimony given by Acosta-Molina
since he had every incentive to prevaricate in order to gain
favorable treatment from the government because he is a
confessed hostage-taker himself.
With rare exceptions, it is the jury — rather than an
appellate court — which must assess witness credibility. See
10
United States v. Cruz, 156 F.3d 22, 27 (1st Cir. 1998), cert.
denied, 526 U.S. 1124 (1999). “‘[A] conviction based solely
upon the uncorroborated testimony of an accomplice can be
upheld, as long as the jury is properly instructed and the
testimony is not incredible as a matter of law.’” United States
v. LiCausi, 167 F.3d 36, 47 (1st Cir.) (citation omitted), cert.
denied, 120 S. Ct. 79 (1999).
Additionally, Acosta-Molina was subjected to vigorous
cross-examination and the government acknowledged in its closing
argument that he was a confessed hostage-taker, thus emphasizing
that the jury must carefully weigh his credibility. See id.(“[A]n accomplice is qualified to testify as long as any
agreements he has made with the government are presented to the
jury and the judge gave complete and correct instructions
detailing the special care the jury should take in assessing the
testimony.") (internal quotation marks and citations omitted).3
Moreover, the government also adduced independent
evidence corroborating the Acosta-Molina testimony. For
instance, an INS agent recognized Peña-Morfe’s voice from the
3
The district court correctly instructed the jury that
Acosta-Molina was “providing evidence under a plea and
cooperation agreement with the government . . . [and] [w]hile
some people in this position are entirely truthful when
testifying, you should consider the testimony of these persons
with particular caution.”
11
tapes made of the ransom calls, which were played for the jury
at trial. See United States v. Flores-Rivera, 56 F.3d 319, 324
(1st Cir. 1995). The agent also took Peña-Morfe’s post-arrest
confession, after which Peña-Morfe led the FBI to the residence
where Mieses-Pimentel was being held. On another tape, an
abductor was referred to as “Luis” — the first name of defendant
Peña-Lora. Similarly, Mieses-Pimentel testified that he
overheard one of his captors become extremely upset when a
cohort inadvertently referred to him as “Luis,” rather than by
his alias.
Accordingly, the sufficiency challenges relating to the
hostage-taking and firearms counts against these three
appellants fail.
12
2. Lorenzo-Hernández
The sufficiency challenges asserted by Lorenzo-
Hernández are more problematic for the government.4 Although he
concedes that the government established that he was in the
house on the morning the FBI rescued Mieses-Pimentel, he
maintains that his actions proved nothing more than “mere
presence” at the scene of the crime, rather than knowing
participation in the abduction. See, e.g., United States v.
Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995) (noting that
“mere presence” at crime scene normally is insufficient to
establish knowing participation in offense). Accordingly,
Lorenzo-Hernández contends that the jury rationally could not
have inferred from the available evidence that he had the
requisite specific intent to commit either the hostage-taking or
the firearm offenses. See id.4
Although Acosta-Molina actually participated in the
hostage-taking with the three other appellants, he did not
implicate Lorenzo-Hernández, whom he did not meet until after
his arrest. In rejecting Lorenzo-Hernández’s motion for
judgment of acquittal, the district court downplayed this fact,
however, because Lorenzo-Hernández’s alleged role in the
conspiracy did not commence until after Mieses-Pimentel had been
relocated from the Acosta-Molina residence. Nonetheless, it is
significant that Acosta-Molina testified that he had visited the
third residence after Mieses-Pimentel was taken there. Acosta-
Molina testified that he met Peña-Morfe and others there, but
made no mention of Lorenzo-Hernández.
13
A close review of the entire trial record discloses:
(a) ample evidence that Lorenzo-Hernández intended to
participate in the hostage-taking; and (b) insufficient evidence
for the firearm conviction under Count 5.
a. The Evidence
The entire case against Lorenzo-Hernández rests on
Mieses-Pimentel’s eyewitness testimony concerning the events on
the final morning of his captivity, after the FBI had surrounded
the third residence at which he had been held hostage.
Accordingly, we scrutinize the trial testimony provided by
Mieses-Pimentel.
Government counsel asked Mieses-Pimentel who had been
present during his three-day captivity at the third residence.
Mieses-Pimentel responded that he had heard the voices of a
female, a baby, and “two male[s].” During that time, Mieses-
Pimentel was continuously blindfolded and chained to a bed in
the rear of the house. These same “two male[s]” — though not
the female — had come into the bedroom on a regular basis
throughout his captivity, to bring food and escort him to the
bathroom.
On the morning the FBI surrounded the house and called
for its occupants to surrender, one of these two males (we shall
refer to him as “Male A”) hurriedly entered the rear bedroom,
14
told Mieses-Pimentel to be silent, removed his blindfold and
handcuffs, then relocated him to another room at the rear of the
house.
At trial, Mieses-Pimentel perfunctorily described Male
A as “a younger guy with a dark complexion.” Government counsel
then asked Mieses-Pimentel: “What else did [you] see?” —
presumably, when Mieses-Pimentel reached the other room at the
rear of the residence. To which Mieses-Pimentel responded:
“the other person, he was a young guy” (Male B?), the female,
and the baby. Government counsel then asked Mieses-Pimentel
whether he could identify “any of these people in the courtroom
today.” Whereupon Mieses-Pimentel pointed out Raimary Lavandier
and “the person sitting next to her,” whom government counsel
identified as Lorenzo-Hernández.
The ensuing testimony from Mieses-Pimentel exhibits a
glaring inconsistency, however. When asked what “the other
individual that you have identified sitting next to [Raimary
Lavandier]” — viz., in the courtroom, i.e., Lorenzo-Hernández —
had done once Mieses-Pimentel had been relieved of the blindfold
and handcuffs, Mieses-Pimentel replied: “He was the one that
took me to the back room and told me to sit down and to act like
I was one of them.”
15
At first blush, the quoted testimony suggests that
Lorenzo-Hernández was Male A, identified earlier by Mieses-
Pimentel, see supra, as the only individual who had entered the
rear bedroom after the FBI arrived. However, when government
counsel asked Mieses-Pimentel whether the individual who had
removed the blindfold was present in the courtroom, Mieses-
Pimentel responded: “[n]o,” notwithstanding the fact that he
had testified earlier that a single individual — i.e., Male A —
had removed both his blindfold and the handcuffs, then escorted
him from the rear bedroom to a different room in the rear of the
residence.
Rather than resolving this testimonial discrepancy,
however, government counsel asked Mieses-Pimentel to describe
the scene he encountered upon arriving in the other room at the
rear of the residence. Mieses-Pimentel responded that the four
persons who were in the room with him were “real nervous,” and
the “girl” (viz., Lavandier) started to cry. “The other person
that is not here today . . . got up and ran outside the room,”
followed shortly thereafter by the woman carrying the baby.
(Emphasis added.) “The other person who was sitting next to her
[viz., in the rear room, i.e., Lorenzo-Hernández] . . . ask[ed]
[Mieses-Pimentel] not to move around too much in case the FBI
came inside they would think he was looking for a gun and shoot
16
us right there.” Lorenzo-Hernández then “got up and ran outside
and . . . left [Mieses-Pimentel] sitting there by [himself].”
When government counsel asked whether Mieses-Pimentel
had seen any weapons “[a]fter the blindfold was removed[,]” he
answered: “Yes, before they took me in the room [i.e., the rear
room to which he was relocated] I saw the other person. He was
running towards the back of the house and carrying some weapons
in his hands.” (Emphasis added.) Mieses-Pimentel identified
these weapons as “a small machine gun” and the two firearms used
to abduct him from the Chris Café.
With respect to the sufficiency challenges to the
Lorenzo-Hernández convictions on the hostage-taking counts, see
18 U.S.C. § 1203(a), the government touts three items of
supportive evidence: the Mieses-Pimentel testimony that (1)
Lorenzo-Hernández was one of the “males” who regularly brought
him food in the rear bedroom during the three-day captivity at
the third residence; (2) Mieses-Pimentel saw Lorenzo-Hernández
running with the weapons toward the rear of the house on that
morning, after the blindfold had been removed from Mieses-
Pimentel; and (3) Lorenzo-Hernández was the person who had
removed the blindfold and the handcuffs, escorted him from the
rear bedroom to the other rear room, and told him to act like
one of them.
17
b. Count 5: Carrying Firearms
In relation to the Count 5 conviction for carrying
firearms, see 18 U.S.C. § 924(c), the government relies on the
trial testimony that Mieses-Pimentel saw Lorenzo-Hernández run
with the weapons toward the rear of the house, whereas Lorenzo-
Hernández claims that Mieses-Pimentel never identified “who that
person was.” As the record reflects that Lorenzo-Hernández
failed to preserve this claim in the district court,5 we review
the present challenge to the sufficiency of the evidence only
for plain error, see United States v. Upham, 168 F.3d 532, 537
(1st Cir. 1999) (“Sufficiency of the evidence objections are
waived, if not made below . . . .”). Moreover, we will not
reverse unless the conviction under Count 5 would result in a
“clear and gross injustice.” United States v. Bello-Perez, 977
F.2d 664, 668 (1st Cir. 1992); see Upham, 168 F.3d at 537(noting that the Olano plain-error test envisions clear showings
5Lorenzo-Hernández’s trial counsel advanced differing
theories in the Rule 29 motion than in his closing argument.
See United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir.
1993) (“Although specificity of grounds is not required in a
Rule 29 motion, where a Rule 29 motion is made on specific
grounds, all grounds not specified are waived.”). In fashioning
his “mere presence” defense, counsel allowed that Mieses-
Pimentel did identify his client as “the other person” running
towards the rear of the house with the weapons, see infra, but
contended that Mieses-Pimentel’s testimony was not credible
because, inter alia, no law enforcement officer had seen anyone
leave the residence and conceal guns in the backyard.
18
that the evidence was obviously insufficient and seriously
affected the defendant’s substantial rights, as well as the
fairness or integrity of the trial process) (citing United
States v. Olano, 507 U.S. 725, 732-33 (1993)); see also United
States v. Todosijevic, 161 F.3d 479, 482 (7th Cir. 1998)
(“‘[R]equirements for plain error are met with respect to
sufficiency of the evidence claims ‘if the record is devoid of
evidence pointing to guilt, or if the evidence on a key element
was so tenuous that a conviction would be shocking.’”) (citation
omitted).
Notwithstanding the highly deferential standard of
review, the conviction against Lorenzo-Hernández under Count 5
must be set aside. The case against Lorenzo-Hernández under
Count 5 depended entirely upon the identification Mieses-
Pimentel made of the person he saw carrying weapons shortly
after law enforcement officers arrived on the premises.
Contrary to the government’s contention, Mieses-Pimentel did not
identify Lorenzo-Hernández as the person whom he saw carrying
firearms on that occasion.6 Rather, on direct examination
6
The government acknowledges that it adduced no evidence
that Lorenzo-Hernández ever “used” these firearms. See Bailey v.
United States, 516 U.S. 137, 143 (1995) (“using” element under
§ 924(c) contemplates proof that particular defendant “actively
employed” weapon). Thus, it relied exclusively on the theory
that Lorenzo-Hernández “carried” or transported the weapons on
this occasion. See United States v. Cleveland, 106 F.3d 1056,
19
Mieses-Pimentel referred to the gun-carrier as “the other
person,” and on cross-examination simply as “someone.”
We cannot reliably determine, within the context of the
Mieses-Pimentel testimony, whether the term “the other person”
adverted to Lorenzo-Hernández or to the second unidentified male
youth who was in the house on the morning in question, but not
in the courtroom during the trial testimony given by Mieses-
Pimentel.7 Since Mieses-Pimentel, in his immediately preceding
testimony, twice used the phrase “other person,” plainly
referring to a different individual on each occasion, the
following question — critical to the government’s case — went
unanswered: the person “[o]ther” than whom? We explain.
First, Mieses-Pimentel testified that “[t]he other
person who is not here [in the courtroom] today” — i.e., plainly
someone other than Lorenzo-Hernández – “had been the first to
run out of the rear room and surrender to the FBI. . . .”
Second, he stated that “the other person who was sitting next to
[the female and baby] . . . [who] ask[ed] him not to move around
too much” was the last to leave the room, leaving Mieses-
1066-67 (1st Cir. 1997) (aff’d, 524 U.S. 125 (1998) (“carrying”
element of § 924(c) is satisfied by proof that defendant
transported firearm either in a vehicle or on person).
7
The record suggests, however, that the unidentified second
male was an unindicted minor.
20
Pimentel by himself. Therefore, the latter person had to have
been Lorenzo-Hernández, because only he could have been present
both at the time of the FBI raid and during the trial testimony
given by Mieses-Pimentel.
Consequently, we can discern no rational means by which
the trial jury could have determined, beyond a reasonable doubt,
whether the “other person,” whom Mieses-Pimentel testified to
having seen carrying the firearms toward the rear of the
residence where Mieses-Pimentel was being held hostage, was
Lorenzo-Hernández or the unidentified male minor.
The latent inconsistency in the Mieses-Pimentel
testimony — as to whether one or two persons removed the
blindfold and escorted him from the rear bedroom — undermines
the jury verdict on Count 5 as well. If (as Mieses-Pimentel
initially testified) Male A came into the rear bedroom, told
Mieses-Pimentel to be quiet, took off the blindfold and
handcuffs, and escorted Mieses-Pimentel to another room in the
rear of the house, and if (as Mieses-Pimentel later testified)
Lorenzo-Hernández was the person who escorted him from the rear
bedroom to the other room in the rear of the residence, then it
would appear highly implausible, if not physically impossible,
that Lorenzo-Hernández was also the gun carrier described in the
trial testimony given by Mieses-Pimentel. This is because
21
Mieses-Pimentel saw the gun carrier just after his blindfold had
been removed, but before Mieses-Pimentel was escorted to the
other room in the rear of the residence.
Accordingly, the evidence strongly suggests that Male
B — rather than Lorenzo-Hernández — was the “other person” whom
Mieses-Pimentel observed carrying the weapons while Lorenzo-
Hernández simultaneously relocated Mieses-Pimentel to another
room in the rear of the residence. Moreover, the government
invited these testimonial inconsistencies from Mieses-Pimentel,
and absent any follow-up clarification by government counsel the
jury plainly lacked a rational foundation for determining which
version of these critical events was to be credited. See United
States v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) (“If the
evidence viewed in the light most favorable to the verdict gives
equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence of the crime charged, [we] must
reverse the conviction. This is so because . . . where an
equal or nearly equal theory of guilt and a theory of innocence
is supported by the evidence viewed in the light most favorable
to the prosecution, a reasonable jury must necessarily entertain
a reasonable doubt.”) (internal quotation marks and citations
omitted). Given the state of the trial record, therefore, the
22
jury determination as to the identity of the gun carrier can
only have been based on sheer speculation.
Although the trial participants assumed throughout that
Mieses-Pimentel positively identified Lorenzo-Hernández as the
gun-toter, the record is totally “devoid of evidence pointing to
[Lorenzo-Hernández’s] guilt [on Count 5],” and the government’s
“‘evidence on [that] key element was so tenuous that a
conviction would be shocking.’” Todosijevic, 161 F.3d 479, 482
(citation omitted). 8 Nor can these deficiencies in the
government’s “linchpin” evidence be considered inconsequential,
8We note as well that customary appellate review and plain-
error review of “sufficiency” challenges differ only negligibly
where the failure of proof on an essential element of the
offense is total. See United States v. Dawlett, 787 F.2d 771,
775 (1st Cir. 1986) ("’It is the imperative duty of a court to
see that all the elements of [a] crime are proved, or at least
that testimony is offered which justifies a jury finding those
elements.’ In this instance the insufficiency of the evidence
mandates reversal since plain error has been committed in an
area so vital to the defendant. Surely our concept of justice
is violated when a man is convicted of a crime he did not
commit.”) (citation omitted); United States v. Spinner, 152 F.3d
950, 956 (D.C. Cir. 1998) (finding plain error despite
unpreserved sufficiency challenge, since “[i]t would be a
manifest miscarriage of justice to let a conviction stand
[where] the government failed to present any evidence on an
essential element of the crime”); Beckett v. United States, 379
F.2d 863, 864 (9th Cir. 1967) (finding plain error despite
defendant’s waiver of sufficiency challenge where "there was no
proof of one of the essential elements [of the charged
offense]"); accord United States v. Meadows, 91 F.3d 851, 855
n.6 (7th Cir. 1996) (noting, in dicta, that “a complete lack of
any evidence of one of the essential elements of a crime is not
only insufficient evidence, but too little evidence to avoid a
manifest miscarriage of justice”).
23
since the section 924(c)(1) conviction exposed Lorenzo-Hernández
to a mandatory thirty-year prison term, see supra note 2, nearly
trebling the eleven-year sentence imposed for his hostage-taking
convictions under Counts 1 and 2. As the conviction under Count
5 constituted plain error, it may not stand.
24
c. The Hostage-taking Counts
The sufficiency challenge under the hostage-taking
counts poses a more formidable hurdle for Lorenzo-Hernández.
Although there was insufficient evidence that he toted a weapon,
the record clearly reflects that the jury acted well within its
prerogative in finding that Lorenzo-Hernández was not “merely
present” at the hostage-scene, but knowingly participated in the
related conspiracy.
Mieses-Pimentel was held hostage for three days at the
third residence, where he remained blindfolded and chained,
which meant that two males had to bring his meals and respond to
his “scream[s]” to use the bathroom.9 Yet more importantly,
Mieses-Pimentel testified that the same two males attended him
throughout his captivity at the third residence. Furthermore,
he not only identified Lorenzo-Hernández as one of the two males
remaining at the third residence on the final morning, but gave
no indication whatsoever that any other male resided continually
in the third residence.
9 Mieses-Pimentel also testified that Lorenzo-Hernández gave
him what the jury may have construed as an order. That is, when
Lorenzo-Hernández and Mieses-Pimentel were left alone in the
rear room after Raimary Lavandier and the second male fled the
house, Lorenzo-Hernández told Mieses-Pimentel not to move around
“in case the FBI came inside they would think he was looking for
a gun and shoot us right there.”
25
The circumstantial evidence thus strongly supported a
reasonable inference that Lorenzo-Hernández was not only a long-
term resident, but one of the two males residing in the house
throughout Mieses-Pimentel’s captivity, and that he participated
in the hostage-taking, at the very least as the victim’s guard
and attendant. See, e.g., United States v. Echeverri, 982 F.2d
675, 678 (1st Cir. 1993) (rejecting “mere presence” defense, as
criminal activity took place in defendant’s residence, where he
enjoyed “dominion and control”); United States v. Lopez, 944
F.2d 33, 39 (1st Cir. 1991) (same); cf. United States v.
Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991) (“[I]t runs
counter to human experience to suppose that criminal
conspirators would welcome innocent nonparticipants as witnesses
to their crimes.").
Therefore, in light of all the record evidence, the
verdicts against Lorenzo-Hernández on Counts 1 and 2 must be
affirmed, while the conviction under Count 5 must be vacated.
B. Failure to Employ Special Verdict Form for Count 5
Lorenzo-Pérez contends that the district court erred
in failing to provide a special verdict form in relation to
Count 5 — charging that he used and carried firearms (viz., a 9
mm UZI, Ruger .367 revolver, and Smith & Wesson .357 revolver)
during the kidnaping — which would have required the jury to
26
indicate precisely which of the three weapons he used or
carried.10 The district court later sentenced Lorenzo-Pérez to
a consecutive thirty-year prison term under Count 5, on the
understanding that the jury must necessarily have been satisfied
that he used or carried the UZI (i.e., a “machinegun”), whereas
his use of the two revolvers (i.e., mere “firearm[s]”) would
have resulted in only a five-year prison-term enhancement. See
18 U.S.C. § 924(c)(1); supra note 2 (describing pertinent
sentencing enhancements).
As it was never raised below, we review the present
claim for plain error, employing the four-step inquiry
prescribed in Olano. See United States v. Hernandez-Albino, 177
F.3d 33, 37-38 (1st Cir. 1999) (citing United States v. Olano,
507 U.S. 725, 732-33 (1993)):
First, an error must have been committed.
Second, the error must be plain or obvious.
Third, the plain error must “affect[]
substantial rights,” which generally means
that it must have been prejudicial. Finally,
because Rule 52(b) is discretionary, we must
be convinced that the error “‘seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings.’”
Id. (citations omitted).
10
Although Lorenzo-Hernández raises the same claim in his
brief, our vacatur of his conviction under Count 5 moots the
claim, see supra Section II.A.2.b.
27
Lorenzo-Pérez predicates the present claim on United
States v. Melvin, 27 F.3d 710 (1st Cir. 1994), where the
defendants were jointly charged under section 924(c)(1) with
using or carrying six weapons, some of which were “firearms,”
whereas others were “machineguns” implicating the thirty-year
prison term. The defendants unsuccessfully sought a special
verdict form which would have required the jury to specify which
of the weapons the individual defendants used or carried.
Instead, the district court instructed the jury that though the
firearm count listed the six weapons conjunctively, rather than
disjunctively, thereby apparently permitting the jury to convict
only if it were to find that the defendants had used all six
weapons, the jury should read the “and” as “or,” and could
convict each defendant if it were to find that each had used or
carried “any one firearm” listed. See id. at 713-14. The jury
returned a general verdict finding defendants guilty under Count
5.
At sentencing, the government urged the district court
to impose the enhanced thirty-year prison term. Acknowledging
that it could not divine from the general verdict form whether
the jury had found that any defendant had used a “machinegun,”
the district court declined. We affirmed. See id. at 715
“([T]he court’s instruction explicitly permitted the jury . . .
28
[to] suspend[] their deliberations on the use of firearms once
they concluded that these experienced criminals must have
carried at least a single gun . . . .”). Nonetheless, Melvin is
unavailing to Lorenzo-Pérez, since the claim of error was duly
preserved in Melvin, whereas the present claim must be reviewed
for “plain error” in accordance with Olano, supra.
Furthermore, unlike the district court in Melvin, the
district court below did not instruct the jury to read “and” as
“or.” Instead, the indictment in the present case emphatically
phrased Count 5 in the conjunctive (i.e., “using and carrying
firearms, specifically, a 9 mm UZI,. . . a Ruger .367 revolver,
. . . and a Smith & Wesson .357 revolver”) (emphasis added).
Accordingly, the district court correctly instructed the jury
that there are two elements in subsection 924(c): (i) each
defendant committed a crime of violence (i.e., the hostage-
taking), and (ii) “during and in relation to the commission of
that crime, the defendant knowingly used or carried a firearm.”
(Emphasis added.)
Lorenzo-Pérez nevertheless insists that the jury charge
given below necessarily overrode the explicit conjunctive
phrasing utilized in Count 5. We do not agree. Instead, the
challenged instruction clearly informed the jury that it could
not convict any defendant under Count 5 if it were to find that
29
the defendant neither used nor carried any weapon. As the
instruction accurately defined the applicable law, the present
claim of error fails.
Lorenzo-Pérez suggests that other language in Melvin
mandates special verdict forms in these cases; thus, the
omission must be considered “obvious.” On the contrary, Melvin
simply rejected the government’s contention that our decisions
severely circumscribe recourse to special verdict forms in
criminal cases. Moreover, we noted that the district courts are
vested with discretion to employ special verdict forms in these
cases — i.e., where a section 924(c) count lists both a regular
“firearm” and a “machinegun.” See Melvin, 27 F.3d at 716 n.10.
The term “discretionary” rationally cannot be redefined as
“mandatory.” Thus, although Melvin vests district courts with
the requisite discretion, Lorenzo-Pérez failed to request a
special verdict form, thereby forfeiting any opportunity to
satisfy the first two Olano criteria.
Furthermore, the evidence overwhelmingly demonstrated
that Lorenzo-Pérez used or carried the UZI. For instance,
Acosta-Molina testified that Lorenzo-Pérez threatened him with
the UZI, calling it “The Silencer” for “people who talk.” The
UZI was recovered after Mieses-Pimentel had been rescued. Since
the jury — even assuming it had been provided with a special
30
verdict form — undoubtedly would have found that Lorenzo-Pérez
used or carried the UZI during the Mieses-Pimentel hostage-
taking, any possible error in failing to provide a special
verdict form on Count 5 would not have ”’seriously affect[ed]
the fairness, integrity or public reputation of [these] judicial
proceedings.’” Hernandez-Albino, 177 F.3d at 38 (citations
omitted); see, e.g., United States v. Edgar, 82 F.3d 489, 510
n.15 (1st Cir. 1996) (finding no “plain error,” in view of
“strong evidence of guilt,” even though an element of the crime
was not made known to the jury).
Next, Lorenzo-Hernández raises the distinct, though
related, claim that the district court erred in failing to
define the term “machinegun,” as used in subsection 924(c), so
as to enable the jury to determine whether the UZI qualified.
Cf. supra note 10. Following oral argument before this court,
the United States Supreme Court held that the statutory
sentencing enhancement for using or possessing a machinegun is
an element of the offense, for determination by the jury, rather
than simply a sentencing factor for determination by the
district court. Castillo v. United States, __ U.S. __, 120 S.
Ct. 2090, 2092 (2000). Although Lorenzo-Pérez has not raised
this claim in his appellate brief, he did note Castillo in an
informative motion.
31
We reject the resort to Castillo for several reasons,
see Fed. R. App. Proc. 28(j), even assuming Lorenzo-Pérez may
claim any benefit conferred by Castillo. See United States v.
Randazzo, 80 F.3d 623, 631 (1st Cir. 1996) (generally,
appellants entitled to apply law prevailing at time of appeal,
rather than time of trial). Plain-error review applies to the
present claim, even though the prevailing practice in the First
Circuit at the time of the trial in the instant case was to
treat the “machinegun” issue as a sentencing factor for
resolution by the district court, rather than an element of the
offense for jury determination. See Johnson v. United States,
520 U.S. 461, 467-68 (1997).
In all events, Melvin explicitly left open the distinct
question now raised by Lorenzo-Pérez, as to whether “the 30-year
sentence could not be imposed because the jury had not been
asked to decide whether those firearms were, in fact, automatic
weapons.” Melvin, 27 F.3d at 715, n.9. Thus, it cannot
seriously be contended that it necessarily would have been
futile for Lorenzo-Pérez to assert the same claim at trial.
Moreover, even if we were to assume, arguendo, that the
failure to instruct the jury on the meaning of the term
“machinegun” overcame the first two Olano criteria, the Castillo
claim advanced by Lorenzo-Pérez nevertheless falters on the
32
fourth Olano criterion. Absent a “miscarriage of justice,”
criminal convictions are not reversed automatically even though
the jury was never instructed on an essential element of the
offense. See Randazzo, 80 F.3d at 631 (finding no “plain
error,” even though intervening Supreme Court decision
determined that “materiality” is element of offense to be
determined by jury, normally an omission constituting
“structural error” necessitating reversal of conviction).
The government adduced uncontradicted evidence that
Lorenzo-Pérez threatened Acosta-Molina with the UZI. Moreover,
neither Lorenzo-Pérez nor Lorenzo-Hernández explains why an UZI,
as a specie of firearm, does not readily meet the statutory
definition of “machinegun.” Cf. infra Section II.C (treating
distinct argument that this UZI was inoperable; hence did not
qualify as “machinegun”). For the foregoing reasons, Lorenzo-
Pérez cannot demonstrate plain error.
C. Inoperable UZI as “Machinegun”
Lorenzo-Pérez claims that the UZI did not qualify as
a “machinegun” under section 924(c), as a matter of law, since
a weapons expert testified that it had been damaged and/or
33
clogged at some time in the past, and could not be fired until
repaired. We disagree.11
While appellant cites no authority for the present
proposition, numerous decisions hold otherwise. See, e.g.,
United States v. Adams, 137 F.3d 1298, 1299-1300 (11th Cir.
1998); United States v. Hunter, 101 F.3d 82, 85 (9th Cir.
1996); United States v. Maddix, 96 F.3d 311, 316 (8th Cir.
1996); United States v. Yannott, 42 F.3d 999, 1006 (6th Cir.
1994); United States v. Willis, 992 F.2d 489, 491 n.2 (4th Cir.
1993); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir. 1993);
United States v. Buggs, 904 F.2d 1070, 1075 (7th Cir. 1990).
Nor have we found a reported decision to the contrary.
Although we have yet to decide the issue, but cf.
United States v. Veilleux, 40 F.3d 9, 11 n.1 (1st Cir. 1994)
(questioning, in dictum, ill-advised government concession that
§ 923(a) required proof that weapon was operable), we find the
rationale adopted by our sister circuits plainly persuasive.
Subsection 923(a)(23) broadly defines “machinegun” as “any
weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger.” 18
11As it poses an issue of statutory interpretation, the
present claim is reviewed de novo. See United States v.
Rostoff, 164 F.3d 63, 66 (1st Cir. 1999).
34
U.S.C. § 921(a)(23) (cross-referencing 26 U.S.C. § 5845(b))
(emphasis added). As the UZI in question plainly met the
requirements of subsection 921(a)(23), we affirm Lorenzo-Pérez’s
conviction and sentence under Count 5.12
D. Consecutive Sentences
Lorenzo-Pérez next contends that the district court
committed reversible error in directing that the thirty-year
prison term imposed under Count 5 run consecutively to the five-
year term imposed under Count 3, see supra note 2, since both
counts alleged subsection 924(c) violations arising from a
single predicate offense, i.e., the Mieses-Pimentel hostage-
taking. As appellant failed to object at sentencing, we review
for plain error. See United States v. Torres-Rosa, 209 F.3d 4,
8 (1st Cir. 2000).
12
In a May 2, 2000, motion submitted prior to oral argument,
Lorenzo-Pérez purported to notify the panel of other case
authorities for a distinct proposition: that the government had
adduced no evidence from which a jury might infer the requisite
mens rea, i.e., that he knew the UZI he possessed came within
the definition set forth in § 921(a)(23). See Staples v. United
States, 511 U.S. 600, 604 (1994). Even if Staples were legally
and factually apposite, which it is not, see United States v.
Shea, 150 F.3d 44, 51-52 (1st Cir.) (detailing reasons Staples
rationale is inapplicable to § 924(c) offenses), cert. denied,
525 U.S. 1030 (1998), appellant failed to raise this distinct
“mens rea” argument in his appellate brief. Therefore, it has
been waived. See United States v. Li, 206 F.3d 56, 57 n.1 (1st
Cir. 2000).
35
The government acknowledges that there is no authority
for imposing a consecutive thirty-year term. Moreover, though
we have never addressed the issue, every circuit which has ruled
to date agrees with the position urged by Lorenzo-Pérez. See,
e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1085 (5th
Cir. 1993); United States v. Martinez, 7 F.3d 146, 147-48 (9th
Cir. 1993); United States v. Sims, 975 F.2d 1225, 1235-36 (6th
Cir. 1992); United States v. Freisinger, 937 F.2d 383, 391-92
(8th Cir. 1991); United States v. Luskin, 926 F.2d 372, 376-77
(4th Cir. 1991); United States v. Henning, 906 F.2d 1392, 1399
(10th Cir. 1990).
Congress enacted subsection 924(c) principally as a
sentencing-enhancement mechanism for application to persons
convicted of underlying crimes of violence committed through the
use of firearms. Nevertheless, the imposition of consecutive
sentences under subsection 924(c) for using multiple weapons
during a single crime of violence would impinge upon fundamental
“double jeopardy” principles. See id.Accordingly, we hold that the consecutive sentences
imposed upon Lorenzo-Pérez for the two firearms convictions,
involving but one hostage-taking, are to run concurrently.
E. The Severance Motions
36
Finally, all four appellants claim that it was error
to deny their motions for severance, which were based on their
contention that trial counsel for their co-defendant, Raimary
Lavandier, unexpectedly interposed a totally antagonistic
defense in mid-trial, thus essentially assuming the role of a
“second prosecutor.” Appellants identify two specific claims of
prejudice: (1) that in opening and closing arguments, as well
as in cross-examining Acosta-Molina, Lavandier’s counsel focused
upon and vouched for Acosta-Molina’s testimony that Peña-Morfe,
Lorenzo-Pérez, and Peña-Lora were the hostage-takers who
assaulted him violently, brandished various firearms, and
repeatedly threatened his life and that of Mieses-Pimentel; and
(2) that Lavandier’s trial counsel ultimately utilized Acosta-
Molina’s testimony in forging a defense of duress, i.e., that
the violent behavior of these appellants intimidated her into
committing the offenses charged.
Appellants argue that such an antagonistic defense
constituted a per se ground for severance, since it was
inevitable that the jury would convict them were it to credit
the prejudicial allegations Lavandier made against her
intimidators. See, e.g., United States v. Buljubasic, 808 F.2d
1260, 1264 (7th Cir. 1987) (noting that codefendant’s coercion
defense made severance “unavoidable”).
37
We review severance rulings for any manifest abuse of
discretion which deprived appellant of a fair trial and resulted
in a miscarriage of justice. See United States v. Magana, 127
F.3d 1, 7 (1st Cir. 1997). As we have explained, however:
“[P]ersons who are indicted together should
be tried together[,] since [t]his practice
helps both to prevent inconsistent verdicts
and to conserve resources (judicial and
prosecutorial). Thus, when multiple
defendants are named in a single indictment,
a defendant who seeks a separate trial can
ordinarily succeed in obtaining one only by
making a strong showing of evident
prejudice. The hurdle is intentionally high
. . . .”
United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995)
(emphasis added; citation omitted). Moreover, severance is
especially disfavored in conspiracy cases. See United States v.
DiMarzo, 80 F.3d 656, 659 (1st Cir. 1996).
In order to gain a severance based on antagonistic
defenses, "’the antagonism . . . must be such that if the jury
believes one defense, it is compelled to convict the other
defendant’." United States v. Woods, 210 F.3d 70, 79 (1st Cir.
2000) (emphasis added; citation omitted). Thus, for example,
mere fingerpointing among codefendants — i.e., the familiar “he
did it, not I” defense — normally is not a sufficient ground for
severance. See, e.g., Zafiro v. United States, 506 U.S. 534,
538-39 (1993) (declining to adopt “bright line rule” that
38
conflicting defenses inevitably require severance); United
States v. McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992) (“The fact
that two defendants assert antagonistic defenses does not, per
se, require severance, even if defendants are hostile or attempt
to cast blame on each other.”).
The present record discloses nothing remotely
approaching a manifest abuse of discretion by the district
court. First, in her opening statement Raimary Lavandier’s
counsel expressly flagged, for all to hear, the substance of
her anticipated defense,13 yet appellants’ counsel interposed no
objection, let alone a motion to sever. See Woods, 210 F.3d at
78-79 (noting that defendant waives right to belated severance
if previously placed on notice of nature of codefendant’s
anticipated entrapment defense); see also United States v. Gio,
7 F.3d 1279, 1284-85 (7th Cir. 1993); Fed. R. Crim. P. 12(b)(5)
(requiring that severance motions be presented prior to trial).
When appellants finally moved for severance, government counsel
13
Lavandier’s counsel argued, in pertinent part: “If you
believe the witnesses from the government then you will hear
some chilling evidence . . . . You are going to hear testimony
about how scared the victim was, you are going to hear how
scared and intimidated his family was, and you are even going to
hear about how scared and intimidated other participants in this
kidnaping were. You are going to hear how the perpetrators of
this crime used guns, used other kinds of force, and used all
kinds of means to instill fear, not only in the victim but also
among the other people . . . .” (Emphasis added.)
39
noted that even the government had been “aware of the
[Lavandier] defense . . . since before the trial,” and expressed
“astonish[ment] to find out [the codefendants] didn’t know what
[her] defense was going to be.” Nor have appellants shown cause
for their belated objections, which were not forthcoming until
the Acosta-Molina cross-examination. See Fed. R. Crim. P. 12(f)
(requiring defendant to show cause for failing to move for
severance before trial); United States v. Munoz, 894 F.2d 292,
294 (8th Cir. 1990).
Second, even if the severance claim were preserved, the
record refutes the principal complaint advanced by appellants:
that Lavandier’s counsel somehow elicited additional inculpatory
evidence during the cross-examination of Acosta-Molina by
exceeding the scope of direct examination. For example,
appellants argue that Lavandier’s counsel “extract[ed] [Acosta-
Molina’s] opinions and conclusions” concerning the purport of
the nickname given the UZI — “The Silencer” — whereas on direct
examination the prosecutor had merely elicited the nickname
given the gun, “not what it was for.” But in fact Acosta-Molina
had already testified that Lorenzo-Pérez threatened him with the
UZI, called it “The Silencer,” and informed Acosta-Molina that
it was “for the people who talk.” The purport could not have
been made much clearer.
40
Thus, the cross-examination by Lavandier’s counsel, as
the district court observed, was “basically a reaffirmation of
the [government] witness’s testimony [on direct],” neither
adding to, nor subtracting from, the government’s case. See
United States v. Arias-Villanueva, 998 F.2d 1491, 1506-07 (9th
Cir. 1993) (finding no abuse of discretion in denial of
severance motion where evidence supporting defendant’s duress
defense would have been admissible against her codefendant at
separate trial); see also United States v. Rose, 104 F.3d 1408,
1416 (1st Cir. 1997) (“[T]he level of antagonism in defenses is
measured by the evidence actually introduced at trial; argument
by counsel is not evidence.”).14
Finally, the Lavandier defense was not irreconcilable
with appellants’ defenses. As the incompatibility of defenses
is measured in degree, appellants must establish that any
incompatibility was very substantial. “To obtain severance on
the grounds of conflicting defenses, a defendant has to
demonstrate that the defenses are so irreconcilable as to
involve fundamental disagreement over core and basic facts.”
United States v. Paradis, 802 F.2d 553, 561 (1st Cir. 1986)
14
We do not read the Rose case as holding that severance
might never be warranted where defense counsel developed,
through argumentation, a truly prejudicial antagonistic defense
from the government’s evidence alone. Each case must be
assessed on its own facts.
41
(emphasis added); United States v. Luciano Pacheco, 794 F.2d 7,
9 (1st Cir. 1986) (“[S]ince the need to believe one defendant
over another will always occur in the face of antagonistic or
fingerpointing defenses, this requisite credibility
determination cannot be, and is not, the decisive factor.
Rather, the need for severance turns on the degree of conflict,
and the extent to which the antagonism goes beyond mere
fingerpointing into the realm of fundamental disagreement over
core and basic facts.”) (emphasis added).
Foremost, appellants incorrectly intimate that a
codefendant’s defense of duress necessitates a severance in
every instance. See, e.g., United States v. Musquit, 191 F.3d
928, 941 (8th Cir. 1999) (finding that defendant had not shown
that “legally cognizable prejudice” resulted from his
interposition of duress defense); Arias-Villanueva, 998 F.2d at
1507; United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir.
1990) (“Nor is it sufficient [for severance] that one defendant
contends that another coerced him to engage in the unlawful
conduct if the jury could believe both that contention and the
codefendant’s defense [of nonparticipation].”) (citation
omitted); United States v. Almeida-Biffi, 825 F.2d 830, 833 (5th
Cir. 1987) (finding that “jury’s acceptance of [defendant’s]
42
duress defense did not require the jury to disbelieve her
husband’s defense [of nonparticipation]”).
In the cases cited by appellants, the defendants had
intended to testify that they knowingly participated in the
offenses, but not until after their codefendants had coerced or
intimidated them.15 Were the jury to credit such a defense, it
would be logically compelled to find that the codefendants
themselves committed the crime which they coerced the defendant
into joining.
By contrast, while cross-examining Acosta-Molina and
during closing argument, defense counsel never conceded that
Lavandier had participated in the hostage-taking, let alone that
she had been coerced to do so by any appellant. Instead, she
15See United States v. Serpoosh, 919 F.2d 835, 838 (2d Cir.
1990) (reversing denial of severance motion where two defendants
provided diametrically opposed versions of core events
underlying drug transaction, each arguing in turn that the other
had coerced or tricked him into participating); United States v.
Peveto, 881 F.2d 844, 858 (10th Cir. 1989) (reversing denial of
severance where defenses were “mutually exclusive,” in that jury
could not have believed each defendant’s assertion that he was
“held against his will” at the scene of the crime if it had
believed the codefendant’s defense that he was becoming a
government informant who “set up” drug dealers, and that he knew
for a fact that the defendant had purchased drugs); Buljubasic,
808 F.2d at 1264 (noting that defendant first planned to testify
that he unwittingly participated in offense by delivering money
to codefendant, but decided to put on defense that he knew he
was participating in a crime, but was intimidated into
participation because of codefendant’s reputation for carrying
guns).
43
focused her argument on a single defense; namely, that Lavandier
was “merely present” at the third residence (“[N]or did she
participate in any significant way in this offense, other than
being present and doing what she normally did . . . in that
house.”)
In recounting the government’s evidence that the
hostage-takers had intimidated Acosta-Molina, defense counsel
did not suggest that the jury necessarily should believe Acosta-
Molina’s identification of appellants as the hostage-takers.
Rather, in the main she suggested that Acosta-Molina’s
description of the hostage-takers’ violent behavior (whatever
their identity) was totally at odds with Lavandier’s passivity
and benign presence at the scene of the crime (“[S]he didn’t
participate with these kinds of [violent] people.”). Defense
counsel likewise emphasized that Acosta-Molina had to muster all
his courage in order to request that his cohorts remove Mieses-
Pimentel from his house, and suggested that it was implausible
that a small female in Lavandier’s position could have
withstood such violent hostage-takers when they relocated the
victim to her residence. Finally, defense counsel noted that
Lavandier, unlike the other hostage-takers, neither attended nor
instructed Mieses-Pimentel. (“[She] never came into his room,
44
[she] never held a gun to his head, [she] never engaged in any
kind of intimidation that he was receiving from his captors.”)
On the other hand, the primary defense advanced by
appellants was that they never participated in the crime
charged; i.e., that Acosta-Molina falsely identified and
implicated them in the hostage-taking. Thus, the “mere
presence” defense advanced by Raimary Lavandier did not depend
upon undermining the defenses presented by appellants.
Lavandier neither testified, nor pointed to any evidence, for
example, that Peña-Morfe, Lorenzo-Pérez or Peña-Lora threatened
her. Cf. supra note 15. Instead, she argued that regardless
whether Acosta-Molina and the other government witnesses were
telling the truth,16 the jury should not convict her, since her
conduct was inconsistent with the profile of these defendants.
Accordingly, denial of the belated motions for severance did not
constitute a manifest abuse of discretion.
16
Appellants argue that Lavandier’s counsel vouched for the
government’s evidence in her closing statement: “I submit to
you that you ought to have total respect for what [Mieses-
Pimentel] testified to.” Appellants have wrenched the quoted
statement from its context. Lavandier’s counsel had just
finished discussing Mieses-Pimentel’s testimony concerning
whether Lavandier had ordered him to be quiet, thus suggesting
that Lavandier was one of the hostage-takers, or had simply
asked him to be quiet. Counsel in no sense suggested that the
jury credit any other part of Mieses-Pimentel’s testimony as it
pertained to Lavandier’s codefendants.
45
The conviction and sentence of appellant Lorenzo-
Hernández under Count 5 is hereby vacated, and the case is
remanded for resentencing on the remaining counts. The
imposition of consecutive terms of imprisonment upon appellant
Lorenzo-Pérez under Counts 3 and 5 is hereby vacated, and the
prison terms on these counts shall run concurrently. In all
other respects, the district court judgment is affirmed.
SO ORDERED.
46