United States v. Jimenez-Bencevi

United States Court of Appeals
For the First Circuit
No. 13-2084
UNITED STATES OF AMERICA,
Appellee,
v.
XAVIER JIMÉNEZ-BENCEVI, a/k/a Xavi, a/k/a Benjie Rafael
Alicea-Colón, a/k/a José Andino, a/k/a Reinaldo Jiménez-
Bencevi, a/k/a Benjamín Amésquita-González,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Thompson and Kayatta,
Circuit Judges.
John R. Martin, with whom Laura Maldonado-Rodríguez, were on
brief, for appellant.
Luke V. Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
John A. Mathews II, Assistant United States Attorney, were on
brief, for appellee.
June 3, 2015
TORRUELLA, Circuit Judge. Appellant Xavier Jiménez-
Bencevi ("Jiménez") was convicted of tampering with a federal
witness, possession of a firearm in furtherance of a crime of
violence, use of a firearm during and in relation to crimes charged
in the indictment, and use of a cell phone in attempting to commit
kidnapping. Because the acts resulted in the death of the witness,
Delia Sánchez-Sánchez ("Sánchez"), Jiménez faced the death penalty,
though the jury ultimately rejected that punishment and instead
recommended a sentence of life imprisonment without the possibility
of release.
Jiménez now appeals, complaining that his trial was
fatally flawed in three respects. First, he argues that the
district court violated his immunity agreement with the government
when it insisted that a defense expert be informed of a proffer
made in an attempt to negotiate a plea. Second, he claims that the
district court improperly restricted his right to cross-examine two
cooperating witnesses by preventing Jiménez from inquiring into
their exposure to a death-penalty-eligible offense. Finally,
Jiménez contends that, with respect to the witness tampering
charge, the evidence was insufficient to support his conviction
because the government did not prove beyond a reasonable doubt that
Jiménez murdered Sánchez to prevent her from providing evidence to
federal authorities regarding a federal crime. Though we find no
merit to Jiménez's second and third claims of error, we agree that
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the district court improperly violated the immunity agreement.
Accordingly, for the reasons that follow, we reverse.
I. Background
On June 21, 2010, Sánchez was shot and killed in broad
daylight in front of the Colmado Hernández mini market in Bayamón,
Puerto Rico. The entire incident was captured on the market's
security camera. According to the footage, a car carrying Sánchez
and two others -- later identified as Ronnie Pérez-Albino ("Pérez")
and his mother Gloria Albino-Figueroa ("Albino") -- arrived at the
Colmado Hernández at approximately 2:00 p.m. Both Sánchez and
Albino exited the vehicle, and almost immediately thereafter a
white Honda Accord arrived. Two men, neither of whom could be
identified from the video, exited the Honda, grabbed Sánchez, and
attempted to force her inside their car. Sánchez resisted and
screamed, and a struggle ensued.1 She eventually fell to the
ground, at which point one of the men -- wearing jeans and a black
shirt with a white design -- removed from his waistband a pistol
which appeared to have been modified to fire automatically and shot
Sánchez seven times. With Sánchez still lying on the ground, the
two men got back into the white Honda and drove away.
Following an investigation, authorities came to believe
that the shooter was Jiménez, the owner of a drug point at the
1
While this struggle was occurring, Pérez pulled his mother back
inside his vehicle.
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Falín Torrech housing project in Sierra Bayamón and a fugitive who
had posted bond and fled from a pending Puerto Rico murder charge.
His brother Alexis Jiménez ("Alexis") was also Sánchez's boyfriend.
Jiménez was indicted on March 23, 2012, and arrested three days
later. On January 10, 2013, the grand jury returned the present
superseding indictment. This four-count indictment charged: (1)
tampering with a witness in violation of 18 U.S.C. § 1512(a)(1)(C)
by killing Sánchez through the use of a firearm with the intent to
prevent her from communicating to a federal law enforcement officer
information related to the commission or the possible commission of
a federal offense; (2) possession of a firearm modified to fire
automatically in furtherance of the crimes charged in Counts One
and Four of the indictment, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) and (B)(ii); (3) using a firearm during and in
relation to the crimes charged in Counts One and Four of the
indictment, in violation of 18 U.S.C. § 924(j); and (4) using a
cell phone in attempting to commit the kidnapping of Sánchez, in
violation of 18 U.S.C. § 1201(a)(1). The indictment also included
a notice of special findings necessary for the government to seek
the death penalty.
Approximately one month before the trial's April 15,
2013, start date, Jiménez approached the government regarding the
possibility of entering a guilty plea in exchange for the removal
of the death penalty. In addition to agreeing to a sentence of
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life without the possibility of release, the government required
Jiménez to provide a proffer containing both a detailed admission
of his guilt to all the crimes he was charged with and any known
information regarding other federal offenders. The parties also
agreed that the proffer would be covered by direct use immunity.
The agreement provided that
the United States agrees that no statements
contained in the written proffer will be used
against [Jiménez] directly in any criminal
case in the District of Puerto Rico. However,
the United States may make derivative use of
and may pursue any investigative leads
suggested by any statements or information
provided, including use in any criminal case
against [Jiménez]. That is, the United States
remains free to investigate any leads derived
from information provided by [Jiménez], and to
use any evidence gained as a result of such
investigation in any subsequent prosecution of
[him]. Further, should [Jiménez] subsequently
testify in a manner inconsistent with any
information provided in the written proffer,
he may and will be cross-examined, confronted
and impeached by these statements.
After reviewing Jiménez's proffer, the government ultimately
rejected his offer to plead guilty, and the case proceeded to
trial.
The trial's guilt phase lasted three days, and the
government presented over ten witnesses.2 Carmen Fernández-Ortega
("Tata"), a resident of the Falín Torrech housing project,
testified that both her husband and Jiménez's brother Alexis sold
2
Only the witnesses relevant to this appeal will be discussed.
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crack cocaine and marijuana for Jiménez at the drug point. She
explained that she and Sánchez were friends and that Sánchez was
vocal about her disapproval of her boyfriend Alexis's involvement
in the drug operation. Indeed, according to Tata, whenever Sánchez
would arrive at the drug point, Jiménez would become upset and a
confrontation would ensue.
Tata further testified that, as "a joke," she and Sánchez
would record each other's conversations on their cell phones and
that many of those conversations involved Jiménez. She elaborated
on one conversation in particular, where Sánchez stated that she
would "turn him in to Justice." Tata's husband overheard this
recording and informed Jiménez. Jiménez subsequently listened to
the recording himself, became upset, hit Tata in the chest with the
phone, and left, taking the phone with him.
Pérez and Albino also testified, explaining how and why
they brought Sánchez to the Colmado Hernández mini market the day
she was murdered. Pérez testified that Jiménez had heard a cell
phone recording of Sánchez in which she stated that she would hand
him over to federal agents, and as a result Jiménez had asked Pérez
to locate Sánchez for him because he wanted to stop her from
talking to the authorities. To accomplish this, Pérez enlisted the
help of his mother, Albino. According to Albino, Sánchez was her
neighbor and the two had a friendly relationship which often
involved Albino giving Sánchez a ride to the Colmado Hernández mini
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market. Pérez and Albino exploited this relationship and offered
to drive Sánchez to the Colmado Hernández mini market on June 21,
2010, the day of the murder, so that Sánchez could withdraw money
there. Pérez explained that once Sánchez accepted their offer, he
informed Jiménez that they would arrive around 2:00 p.m.
Both Pérez and Albino identified the shooter in the video
as Jiménez. Pérez stated that after the murder, Jiménez called him
and told him that he "wanted to shoot her in the forehead, but that
he had to bring the chip down." Jiménez added that Pérez needed
"to shut [his] mouth or the same thing would happen to [him]."
Albino corroborated this, testifying that "Xavier took out a pistol
from his waist and shot [Sánchez]." She added that Jiménez killed
Sánchez "[b]ecause she was going to hand him over to the Feds."
In addition to these three witnesses, the government
linked Jiménez to the crime through the following evidence:
testimony of numerous police, forensic, and cooperating witnesses;
the previously-described surveillance footage outside the Colmado
Hernández mini market; phone records between Jiménez and Pérez;
photographs of Jiménez found in a wallet in the white Honda Accord;
and the combination of video footage at a Kentucky Fried Chicken
showing a man with the same black shirt and white design as the
shooter purchasing food, and a KFC food receipt (found in the Honda
Accord) showing Jiménez contemporaneously purchasing food there.
The government also provided the testimony of Luz Enid Aponte,
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Sánchez's probation officer, who testified that on June 8, 2010, an
FBI task force officer asked her not to visit Sánchez because
Alexis had been stopped and questioned about whether Sánchez was
providing information to the government.3 When Aponte and Sánchez
met approximately one week later as part of Sánchez's probation
requirements, Sánchez confirmed to Aponte that she was cooperating
with the FBI, that Jiménez owned a drug point at Falín Torrech, and
that he had threatened her.
Jiménez's defense strategy, meanwhile, was to create
reasonable doubt by suggesting that the shooter in the video was
not Jiménez but rather Raymond Jiménez ("Raymond"), Jiménez's
brother and the twin brother of Alexis. To accomplish this,
Jiménez intended to employ a two-prong approach. First, he worked
to discredit Pérez and Albino through cross-examination aimed at
establishing that they were either protecting or in fear of the
real shooter. Jiménez introduced telephone records between Pérez
and two major drug offenders -- José Jiménez-Echevarría ("Lechón")
and Harold Ayala-Vásquez ("Harry") -- throughout the day of
Sánchez's murder, and Pérez admitted that he never told the agents
3
Sánchez was indeed providing information to the government.
Officers inspecting Sánchez's body found a piece of paper
containing telephone numbers belonging to federal agents. One of
those numbers belonged to FBI Task Force Investigative Agent Pablo
Irizarry-Ayala ("Irizarry"), who testified that he had met with
Sánchez and she had provided the FBI with information related to
both Jiménez –- who she described as the leader of an organization
in the Falín Torrech housing project in Bayamón -- and Alexis.
-8-
about these calls. Moreover, Pérez conceded that he gave the
agents several different versions of the events surrounding the
shooting. Jiménez also elicited testimony to the effect that
Sánchez had bragged that she was going to take everybody down and
that "everybody" included both Lechón, who was in a relationship
with Albino, and Raymond.
Jiménez next aimed to demonstrate that Pérez and Albino
were biased as a result of the plea and cooperation agreements they
each had signed with the government. According to the agreements,
Pérez and Albino each agreed to plead guilty to tampering with a
witness and to cooperate with the government against Jiménez, and,
in exchange, the government would recommend a sentence of no more
than seventy months. When Jiménez's counsel asked Pérez if,
"[w]hen you were arrested for your involvement in this case, a
death eligible Indictment was filed against you?" the government
objected, and a bench conference ensued. During the sidebar, the
government argued that Pérez was only charged with tampering with
a witness, which was not a death-eligible offense. Jiménez,
meanwhile, argued that although Pérez and Albino were indicted on
non-death-eligible offenses, the initial complaints filed against
them were certified as potential death-penalty cases, and he had a
right to probe whether the ultimate indictments not charging death-
eligible offenses were the result of a covert agreement with the
government.
-9-
The district court reviewed Pérez's indictment and
rejected Jiménez's argument, concluding that "[t]his is not a death
penalty eligible case, what he pled to." It added that Pérez
pled under 10-452 with tampering with a
witness. That's what he was charged with.
Therefore, it was totally misleading to
indicate to the jury or try to make the jury
understand that at one point in time he was a
death penalty eligible defendant. He was
never a death penalty eligible defendant.
It's as simple as that.
The bench conference then ended, and Jiménez continued with his
cross-examination, exploring other aspects of Pérez's plea and
cooperation agreement, as well as other topics such as Pérez's
involvement with drugs, his destruction of property, and violations
while in federal prison.
Following the cross-examination, the parties revisited
the death-penalty issue outside the presence of the jury. During
this exchange, the district court sought more information so it
could determine whether Pérez's and Albino's indictments were
indeed the result of an agreement with the government. The
government responded that there was no cooperation agreement in
place at the time the indictment was filed and that the reason the
government decided not to indict for a death-eligible offense was
because it lacked any evidence that either Pérez or Albino knew
that Jiménez planned to kill Sánchez at the Colmado Hernández mini
market. According to the government, it wanted to charge "what
[it] could reasonably prove beyond a reasonable doubt for sure."
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Still not entirely convinced, the district court
proceeded to question both Pérez's and Albino's defense counsels.
Both attorneys confirmed what the government had proffered,
explaining to the district court that there was never a deal
trading cooperation for a non-death-eligible "wishy washy"
indictment. They also emphasized that even before the indictments
were filed, both attorneys were adamant in communications with the
government that neither Pérez nor Albino took Sánchez to the mini
market knowing that she was going to be killed. Given all of this
information, the district court upheld its initial ruling
prohibiting Jiménez from questioning either Pérez or Albino about
exposure to the death penalty. It emphasized, however, that except
for the death-penalty inquiry, Jiménez could ask any question he
wanted on the issue of the plea agreement. Though Jiménez did not
ask Pérez anything further, he did question Albino about her plea
and cooperation agreement and explored her potential bias due to
her desire for a lower sentence.
The second prong of Jiménez's defense strategy focused on
the surveillance video. As noted above, the video showed the
shooter wearing jeans and a black shirt with a white design but did
not capture his face. Jiménez intended to present the expert
testimony of William J. Stokes, the former Chief of the Special
Photographic Unit of the FBI Laboratory in Washington, D.C., who
would have testified that the person in the surveillance video
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could not have been Jiménez. Specifically, Stokes would have
testified that after reviewing the surveillance footage and going
to the Colmado Hernández mini market to take measurements, he
concluded that the shooter in the video was at least 5'10½" --
several inches taller than Jiménez, who stood at 5'7". Jiménez
would have also introduced evidence showing that his brother
Raymond was approximately 5'10".
The government objected before trial to Stokes's
testimony, based on the proffer Jiménez had made in an attempt to
negotiate a plea. According to the government, it was unethical
for Jiménez's counsel to present an expert stating that the shooter
was too tall to be Jiménez because the proffer agreement admitted
that Jiménez "was the shooter of Sánchez-Sánchez." The district
court rejected this argument, but nevertheless opined that Jiménez
did have an obligation to inform Stokes of the information in the
proffer:
I want you to be clear that I am not telling
you on the record in case there is an appeal
or something that I am foreclosing you [from
calling Stokes]. What I am saying is that if
there is a proffer, a proffer that clearly
establishes a point, and that proffer comes to
-- comes before me in the context of the
pretrial practice of this case, as it
happened, I cannot in good conscience allow an
expert who has not been made aware of the
proffer to give an expert opinion on something
where he's missing evidence, he's missing
facts, because I would then be in a sense part
and parcel to the giving of evidence that is
not realistic or true.
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Jiménez objected, arguing that "[i]f that's the fact, then [Stokes]
can be cross-examined about [the proffer], and then it comes in, so
we're stuck." The district court essentially agreed, stating that
"[i]f it comes out good the way you do it, fine. If it bounces in
your face, it's a big problem that you have."
During trial the following day, Jiménez raised the issue
again in an attempt to make a proffer to the court. The district
court reemphasized its prior point, explaining that "[w]hat you
cannot do is hire an expert, once again, give him selective
information for him to give you an opinion when you know that some
of the facts that he has, that he doesn't have, make his opinion
totally wrong. You cannot do that." The court effectively made
clear that the expert could not offer his opinion as it stood to
the jury. If Jiménez called the expert to do so, the district
court would voir dire him, revealing the substance of the proffer.
Then, reasoned the court, the expert would likely recant. And even
if he did not, the court would not allow Jiménez to "use an expert
to give an imprimatur of expertise on something that [Jiménez]
know[s] is totally false." As a result, Jiménez never called
Stokes to testify.
Jiménez was ultimately convicted on all four counts of
the superseding indictment. Following the guilty verdict, the case
proceeded to the sentencing phase to determine whether or not the
death penalty would be imposed. After five days, the jury
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unanimously rejected the death penalty and recommended a sentence
of life without the possibility of release. The district court
imposed this sentence on August 6, 2013, and this timely appeal
followed.
II. Discussion
On appeal, Jiménez raises three issues. First, he argues
that the district court violated his immunity agreement with the
government when it insisted that Stokes be informed of admissions
made in Jiménez's proffer, despite the proffer being protected by
direct-use immunity. Second, Jiménez claims that the district
court improperly restricted his cross-examination of Pérez and
Albino by preventing him from inquiring into their initial exposure
to a death-penalty-eligible offense as a bias and motivation for
their cooperation and testimony. Finally, Jiménez contends that,
with respect to Count One's witness tampering charge, the evidence
was insufficient to support his conviction because the government
did not prove beyond a reasonable doubt that he murdered Sánchez to
prevent her from providing evidence to federal authorities
regarding a federal crime. We address each in turn.
A. The Immunity Agreement
We first address Jiménez's argument that the district
court violated his immunity agreement with the government -- made
in a desperate attempt by Jiménez to negotiate a plea and avoid the
death penalty -- when the district court required Jiménez to inform
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Stokes, his photographic and video expert, of the proffer (and thus
Jiménez's admissions) before the expert would be permitted to
testify. Before we reach the merits, however, we must address a
potential procedural barrier raised by the government: that Jiménez
waived this argument.
1. Waiver
The government contends that because Jiménez never called
Stokes to testify at trial, he waived any objection regarding
Stokes's potential testimony. In support, it cites to a host of
cases -- from this Circuit and others -- that uniformly hold that
a defendant cannot challenge conditional in limine rulings unless
the witness actually testifies at trial and the conditional ruling
is upheld. See, e.g., United States v. Vázquez-Botet, 532 F.3d 37,
50 n.7 (1st Cir. 2008); United States v. Holmquist, 36 F.3d 154,
164 (1st Cir. 1994); see also Jones v. Kassulke, No. 95-6459, 127
F.3d 1102, at *4 (6th Cir. Oct. 23, 1997) (unpublished table
decision); Bedoya v. Coughlin, 91 F.3d 349, 352 (2d Cir. 1996);
United States v. Cree, 778 F.2d 474, 479 (8th Cir. 1985).
Vázquez-Botet and Holmquist, however, establish only the
general proposition that when a district court has only
conditionally ruled on evidence or testimony, and remains willing
to consider it, a party must offer it if that party wishes to later
complain about its exclusion. Waiver simply does not apply to
failures to revisit unconditional in limine rulings. See Crowe v.
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Bolduc, 334 F.3d 124, 133 (1st Cir. 2003); Holmquist, 36 F.3d at
166 n.12.
While the court strongly tipped its hand that it would
insist that the expert be made aware of the proffer, and likely be
exposed to cross-examination on the issue, we agree that, initially
at least, some of those remarks in and of themselves were
conditional. However, throughout the exchange, the district court
made its views increasingly definitive. When Jiménez revisited the
issue again at trial, he received reaffirmance of the district
court's decision that the expert must be told of the proffer before
the court would even consider allowing him to testify. Along with
this requirement came the district court's ultimate conclusion that
the expert would likely recant upon learning of the proffer; and if
he did not, the court would not allow him to testify.4 This ruling
can only be characterized as unconditional, and thus Vázquez-Botet
and Holmquist are inapplicable. We therefore reject the
4
The district court stated that
I offered you to have the witness sit here and be voir
dired and be asked whether in light of that information,
he would still be willing to give his testimony. And I
bet you that he would have said no, because once he gets
to know the reality of the facts, no serious individual
is going to take the stand and give the testimony of the
kind that you want under these circumstances.
It then clarified that while Jiménez's counsel could argue
"whatever [he] want[ed]," he could "not use an expert to give an
imprimatur of expertise on something that [counsel] know[s] is
totally false."
-16-
government's waiver argument and turn to the merits of Jiménez's
objection.
2. The District Court's Actions
"Informal immunity agreements, such as proffer
agreements, 'are shaped . . . by the language of the contract
conferring the immunity.'" United States v. Melvin, 730 F.3d 29,
37 (1st Cir. 2013) (alteration in original) (quoting United States
v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988)). Accordingly, the
meaning of the proffer agreement, and whether it was violated, are
reviewed de novo. Id. In conducting this review, we are primarily
guided by contract-law principles, including the familiar tenets
that contracts should be construed to give effect to every word,
clause, and phrase, and that when a term is ambiguous, it is to be
construed against the drafter -- in this case the government. Id.
We say primarily guided, though, because the agreement is made in
the course of a criminal proceeding. To that end, "[p]roffer
agreements are sui generis, and the contract-law principles that
courts use in construing them are glossed with a concern that the
defendant's consent to appear at a proffer session should not
become a lever that can be used to uproot his right to fundamental
fairness under the Due Process Clause." Id. at 39; see also United
States v. $87,118.00 in U.S. Currency, 95 F.3d 511, 517 (7th Cir.
1996) ("[S]uch agreements are unique contracts and the ordinary
contract principles are supplemented with a concern that the
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bargaining process not violate the defendant's rights to
fundamental fairness under the Due Process Clause." (internal
quotation marks omitted)). As a result, a violation of an immunity
agreement is a due process violation. Melvin, 730 F.3d at 39.
Rule 410 of the Federal Rules of Evidence and Rule 11(f)
of the Federal Rules of Criminal Procedure set the background rule:
subject to certain non-applicable exceptions, "statements made in
the course of plea negotiations . . . are inadmissible." This
background rule, though, may be waived. United States v.
Mezzanatto, 513 U.S. 196, 197, 210 (1995). Here, the parties
agreed to a waiver that stated as follows:
So long as [Jiménez] provides complete and
truthful information in the written proffer,
he shall have the protection afforded by
direct use immunity; that is, the United
States agrees that no statements contained in
the written proffer will be used against him
directly in any criminal case in the District
of Puerto Rico. However, the United States
may make derivative use of and may pursue any
investigative leads suggested by any
statements or information provided, including
use in any criminal case against [Jiménez].
That is, the United States remains free to
investigate any leads derived from information
provided by [Jiménez], and to use any evidence
gained as a result of such investigation in
any subsequent prosecution of [Jiménez].
Further, should [Jiménez] subsequently testify
in a manner inconsistent with any information
provided in the written proffer, he may and
will be cross-examined, confronted and
impeached by these statements.
Nothing in this language even remotely granted the government the
right to use the proffered admission in cross-examining Jiménez's
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witnesses. The omission is especially telling when this agreement
is compared to others used both in this Circuit and throughout the
country which grant the government permission to use the proffer to
rebut contrary evidence elicited from other defense witnesses.
Cf., e.g., Melvin, 730 F.3d at 36 ("No statements made or other
information provided . . . will be used by the United States
Attorney directly against him, except for purposes of cross-
examination and/or impeachment . . . ." (second alteration in
original)); United States v. Chiu, 109 F.3d 624, 626 (9th Cir.
1997) ("[T]he government may use . . . statements made by you or
your client at the meeting and all evidence obtained directly or
indirectly from those statements for the purpose of cross-
examination should your client testify, or to rebut any evidence,
argument or representation offered by or on behalf of your client
in connection with the trial . . . .").
It is clear, therefore, that the government could not use
the proffer to cross-examine or otherwise impugn the expert. As
the district court itself noted, the proffer language "does not
include the possibilit[y] of opening the door through the
presentation of evidence. It has to be if the defendant
testifies." Yet this is more or less what the district court
itself did, treating the proposed expert testimony as a
justification for the court's use of the proffer. Indeed, it went
further, first using the proffer to find as a fact that Jiménez was
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the shooter, and then announcing that the expert would either come
to that conclusion when shown the proffer, or not be allowed to
testify. This is, in no uncertain terms, a violation of Jiménez's
right to due process of law. See Melvin, 730 F.3d at 39.
The government makes a number of arguments in an attempt
to overcome this obvious violation. We find none persuasive.
First, it suggests that the district court's order allowing the
proffer to be used against Jiménez was a derivative, not direct,
use of the proffer. However, derivative means "[s]omething
derived; a thing flowing, proceeding, or originating from another."
United States v. Scott, 12 F. Supp. 3d 298, 304 (D. Mass. 2014)
(alteration in original) (quoting The New Shorter Oxford English
Dictionary 641 (1993)) (internal quotation marks omitted). Here,
by contrast, the district court would not have used any information
derived or flowing from the proffer after subsequent investigation;
it would have used the proffer itself. See Melvin, 730 F.3d at 38
(holding that an officer's voice identification of the defendant,
made after hearing the defendant during a proffer session, was a
direct use of the proffer); United States v. Pielago, 135 F.3d 703,
710 (11th Cir. 1998) (explaining direct use immunity to mean that
the government "may not use [the information or statements] as
evidence to obtain an indictment or guilty verdict").
In this manner, the district court itself treated the
proffer as irrefutably establishing a fact (that Jiménez was the
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shooter) and then used that fact as a basis for precluding the
expert from giving expert testimony that refuted it. As noted, the
district court did not claim that the proffer allowed the
government to use it to knock out Jiménez's expert witness.
Rather, the court asserted its own independent authority as a
"gatekeeper" of expert testimony under Rule 702, to use the proffer
in this manner. In so proceeding, the district court clearly
erred.
To begin, we see little advantage and much unfairness in
allowing a district court to use a defendant's proffer against the
defendant in a manner not allowed by the proffer. If a proffer
allows only uses A and B, but the government can give the proffer
to the court, which then uses it to do C at trial, proffers -- a
valuable tool for both law enforcement and defendants facing severe
sentences -- will be rendered unpredictable in their enforcement,
and thus less likely to be made. The aim of an agreement not to
use a proffer at trial against a non-testifying defendant is not to
keep the government from using the evidence, it is to keep the
judge and jury from using the evidence.
Second, the district court was simply wrong to treat the
proffer as establishing a fact, much less the fact of guilt. There
are many possible reasons why a defendant seeking to avoid the
death penalty might conditionally admit to a false fact to see if
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a sentence can be avoided.5 He might so fear death over a long
sentence that a trade-off is seen as reasonable; he might be
protecting another person; he might be of impaired capacity; or he
might be deluded. A proffer, much less an unaccepted proffer, is
simply not the same thing as a guilty plea or conviction. Yet, the
district court treated it as such in order to eliminate an
important defense witness.
A simplified example highlights the error here. Imagine
the defense found a high-resolution video of the shooting, clearly
showing that the shooter was someone other than Jiménez, and
Jiménez wanted to use an expert to authenticate the video. Under
the district court's reasoning, such a piece of evidence would have
been automatically excluded as not "realistic or true" because it
contradicted the statement in the proffer. This makes no sense.6
5
In no way are we suggesting that a defendant's proffer and
admission of guilt should be taken with a grain of salt. In the
run-of-the-mill case, it is in a defendant's best interest to tell
the truth, and he or she often has little incentive to lie.
However, as the Supreme Court has stated for over forty years,
"death is different." See, e.g., Ring v. Arizona, 536 U.S. 584,
605-06 (2002); Murray v. Carrier, 477 U.S. 478, 526 (1986)
(Brennan, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 188
(1976). A defendant facing the death penalty has a strong
incentive to say whatever is needed to eliminate a potential death
sentence and preserve his life. Indeed, when we asked learned
counsel at oral argument whether he believes defendants sometimes
admit guilt in a proffer in order to avoid a severe sentence even
though they are not guilty, learned counsel unequivocally and
succinctly stated, "Yes."
6
To the extent one tries to distinguish this example by arguing
that the expert testimony here is less compelling, we note that
such an argument would hinge on a judgment about the persuasiveness
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Finally, the government argues that it was acceptable for
the district court to require the proffer be disclosed because
allowing Stokes to testify without knowledge of the proffer would
have created an ethical violation since Jiménez's counsel would be
allowing the presentation of false testimony. We disagree.
Attorneys practicing before the District Court for the District of
Puerto Rico are bound by the American Bar Association's Model Rules
of Professional Conduct. D.P.R. R. 83E(a). Rule 3.3(a) of these
Rules requires a lawyer to "not knowingly . . . offer evidence that
the lawyer knows to be false." Model Rules of Prof'l Conduct R.
3.3(a)(3). The comment to this Rule elaborates that the prohibition
"only applies if the lawyer knows that the evidence is false" and
that a "lawyer's reasonable belief that evidence is false does not
preclude its presentation to the trier of fact." Id. cmt. 8.
Here, Jiménez's counsel had reason to be skeptical of the
admission and thus did not "know" that Stokes's expert opinion was
false. First, when Jiménez was initially arrested, he denied
involvement, instead stating that the shooter was his brother
Raymond. Second, as discussed above, the two eye-witnesses --
Pérez and Albino -- were not the most credible of witnesses: they
provided the police with changing stories, they withheld
information regarding who they were in contact with the day of
of that testimony -- a judgment which would go well beyond any
gate-keeping role.
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Sánchez's murder, they had relationships with two other likely
suspects, and their testimony was part of a plea and cooperation
agreement. Third, Stokes -- a former FBI agent with over twenty-
five years experience who was trained in examining photographic and
video evidence -- opined that the shooter was too tall to be
Jiménez. Fourth, Jiménez was desperate to avoid the death penalty
and the government was adamant that it would not consider any plea
agreement unless Jiménez admitted to all of the charges. Given all
of this, Jiménez's counsel could reasonably conclude that Jiménez's
admission might have been false and that he was simply stating
whatever he had to in order to avoid the death penalty.
Moreover, there is nothing to suggest that Stokes
believed his testimony was false. This is no different than an
alibi witness believing, though possibly mistakenly, that he or she
saw a defendant at one location despite a defendant's proffer to
the contrary. Under the district court's and the government's
rationale, the alibi witness would be unable to testify. This is
not what our justice system requires.7 See, e.g., Mich. Op. CI-
7
We also take issue with the district court's comment that it
"ha[s] an obligation to make certain that the facts that come out
are as truthful as possible to the reality of the case. I cannot
close my eyes to that reality. It would be improper, wrong for me
to do that, and I will not allow that." District courts "close
their eyes" to pertinent evidence all the time. For example, that
is the whole point of motions to suppress; if evidence or
statements are suppressed, courts and parties pretend that the
evidence does not exist. Similarly, if evidence is excluded under
Rule 403 of the Federal Rules of Evidence, pertinent and relevant
evidence is ignored by the court and the parties because of a
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1164 (Jan. 23, 1987) (finding no ethical violation in presenting an
alibi witness who truthfully believes that the defendant was
somewhere else at the time of the offense even though the client
had revealed to counsel that he committed the crime).
The government points to two district court cases which
contrarily hold that a defense attorney is ethically bound from
presenting evidence which conflicts with statements made during his
client's proffer, even if that proffer is subject to direct-use
immunity. See United States v. Burnett, Criminal Action No. 08-
201-03, 2009 WL 2180373, at *5 (E.D. Pa. July 17, 2009) ("Absent a
good-faith basis, within the operation of the Pennsylvania Rules of
Professional Conduct, [defendant's] counsel may not present
evidence or arguments on [defendant's] behalf that directly
contradict the admissions made by [defendant] during his proffer
sessions."); United States v. Lauersen, No. 98CR1134 (WHP), 2000 WL
1693538, at *1 (S.D.N.Y. Nov. 13, 2000) ("This Court finds that
[defendant's] waiver of rights is invalid to the extent that the
Government seeks to use her statements for purposes other than to
impeach [defendant] if she were to testify. However, absent a
good-faith basis, [defendant's] counsel may not present evidence or
arguments on [defendant's] behalf that directly contradict specific
belief that it is unduly prejudicial. This is no different.
Jiménez's proffer, for all intents and purposes, did not exist
unless he testified. Just like excluded evidence, the district
court had an obligation to "close [its] eye to that reality" unless
Jiménez took the stand.
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factual assertions summarized in the Form FD-302 prepared by the
Government."). Both cases, however, carve out an exception for
evidence presented with a "good-faith basis." Burnett, 2009 WL
2180373, at *5; Lauersen, 2000 WL 1693538, at *1. We believe that
the situation presented here, for the reasons discussed above,
would qualify as a "good-faith basis" for presenting Stokes's
expert opinion even though it is contrary to the proffer. But to
the extent that it would not, we simply note that these cases are
not binding on us, and we believe them to be incorrect.
3. Harmless Error
Our conclusion that the breach of the immunity agreement
violated Jiménez's due process rights does not end our discussion.
Instead, we must still determine whether this ruling was harmless.8
To that end, the government must show beyond any reasonable doubt
that the jury's verdict would not have been influenced by the
district court's error. See Melvin, 730 F.3d at 39 ("Because the
government's adherence to the terms of the proffer agreement is
8
As we noted in Melvin, "[i]t is open to legitimate question
whether the rule demanding 'automatic reversal' based on 'policy
interest[s]' might apply" to the violation of an immunity
agreement. 730 F.3d at 38 n.3 (second alteration in original)
(quoting Puckett v. United States, 556 U.S. 129, 141 & n.3 (2009)).
The Second Circuit, for example, has ruled that it does. See
United States v. Pelletier, 898 F.2d 297, 303 (2d Cir. 1990) ("The
deliberate direct use at trial of all of a defendant's immunized
grand jury testimony in violation of the government's express
agreement to the contrary violates due process and cannot be
considered harmless error." (internal citation omitted)). Like in
Melvin, we decline to answer this question because the error was
not harmless. See Melvin, 730 F.3d at 38 n.3.
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insured by the Due Process Clause, its failure to adhere is
perforce of constitutional dimension. It follows inexorably that
the stricter harmless-error standard [of harmless beyond a
reasonable doubt] applies to such a failure."). This is something
it cannot do.
As discussed above, the government's evidence consisted
primarily of the following: forensic data linking Jiménez to the
white Honda Accord involved in the shooting; video showing Jiménez
wearing clothing similar to that of the shooter; Tata's testimony
(1) that Sánchez and Jiménez did not get along due to Alexis's
involvement with Jiménez's drug trade and (2) that Jiménez heard a
recording where Sánchez said she was going to report Jiménez to the
Feds; and the testimony and eye-witness identifications by Pérez
and Albino. With the exception of Pérez's and Albino's testimony,
much of this evidence was circumstantial.
Of this evidence, by far the most damning was Pérez's and
Albino's testimony that, at Jiménez's request, they took Sánchez to
the Colmado Hernández mini market and then watched as Jiménez
exited the white Honda, tried to abduct Sánchez, and then murdered
her in broad daylight when the abduction failed. This testimony,
however, was vigorously attacked on cross-examination. Jiménez
highlighted that both Pérez and Albino were potentially biased and
provided multiple reasons for this bias, including strong personal
relationships with others who may have wanted Sánchez dead, fear
-27-
for their safety should they implicate the true shooter, and the
cooperation agreements made with the government to ensure more
lenient sentences.
Though the jury ultimately found Pérez and Albino
credible enough to convict Jiménez, we cannot say beyond all
reasonable doubt that the jury would have continued to credit this
testimony and would have come to the same guilty verdict had
Jiménez been able to provide expert testimony -- from the former
Chief of the Special Photographic Unit of the FBI Laboratory, no
less -- concluding that the shooter in the video was too tall to be
Jiménez. The jury may very likely still have convicted Jiménez,
but it may not have. Accordingly, the error was not harmless
beyond a reasonable doubt, and we must reverse Jiménez's
conviction.
B. Restrictions on Cross Examination
Though we are already reversing Jiménez's conviction, we
will still address his Confrontation Clause argument because it has
been fully briefed and will almost certainly arise again should
Jiménez be retried. See Compagnie Nationale Air France v. Castano,
358 F.2d 203, 208 (1st Cir. 1966) ("Since there must be a new
trial, and this matter is likely to come up again, we will deal
with it."). According to Jiménez, the district court violated his
Sixth Amendment right to confrontation by forbidding any cross-
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examination about Pérez's or Albino's initial exposure to the death
penalty. We disagree.
The Sixth Amendment's Confrontation Clause "guarantees
criminal defendants the right to cross-examine those who testify
against them." United States v. Vega Molina, 407 F.3d 511, 522
(1st Cir. 2005) (citing Davis v. Alaska, 415 U.S. 308, 315 (1974)).
It extends to cross-examination "reasonably necessary to delineate
and present the defendant's theory of defense," id., and includes
"the right to cross-examine the government's witness about his bias
against the defendant and his motive for testifying," United States
v. Ofray-Campos, 534 F.3d 1, 36 (1st Cir. 2008). Indeed, we have
consistently held that "cross-examination is the principal means by
which the believability of a witness and the truth of his testimony
are tested." Brown v. Powell, 975 F.2d 1, 3 (1st Cir. 1992)
(quoting Kentucky v. Stincer, 482 U.S. 730, 736 (1987)) (internal
quotation marks omitted).
This right, however, has limits, and "[t]he Confrontation
Clause does not give a defendant the right to cross-examine on
every conceivable theory of bias." United States v. Martínez-
Vives, 475 F.3d 48, 53 (1st Cir. 2007) (alteration in original)
(quoting United States v. Callipari, 368 F.3d 22, 38-39 (1st Cir.
2004), vacated on other grounds, 543 U.S. 1098 (2005))(internal
quotation marks omitted). As the Supreme Court explained in
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986),
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[i]t does not follow, of course, that the
Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any
limits on defense counsel's inquiry into the
potential bias of a prosecution witness. On
the contrary, trial judges retain wide
latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on
such cross-examination based on concerns
about, among other things, harassment,
prejudice, confusion of the issues, the
witness' safety, or interrogation that is
repetitive or only marginally relevant.
To that end, our review of a district court's decision to
limit cross-examination involves a two-step inquiry. First, we
"review de novo the district court's conclusion that, even though
cross-examination was limited, the defendant was afforded
sufficient leeway to establish a reasonably complete picture of the
witness' veracity, bias, and motivation." United States v.
Capozzi, 486 F.3d 711, 723 (1st Cir. 2007) (quoting United States
v. Byrne, 435 F.3d 16, 21 (1st Cir. 2006)) (internal quotation
marks omitted). Then, assuming this initial threshold is
satisfied, we "review the particular limitations only for abuse of
discretion." Martínez-Vives, 475 F.3d at 53.
Here we have little doubt that Jiménez was able to paint
for the jury a complete picture of both Pérez and Albino such that
he "was afforded a reasonable opportunity to impeach" them. Id.
(internal quotation marks omitted). Regarding Pérez, Jiménez
introduced a number of facts calling both his identification of
Jiménez and his credibility into question. First, Jiménez
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established that beginning the morning of June 21, 2010, and
continuing until after Sánchez's murder that afternoon, Pérez had
multiple conversations with Lechón and Harry -- both of whom were
involved in drug dealing in Falín Torrech and both of whom were
included in Sánchez's threat to take everybody down -- yet failed
to reveal this information to the authorities. Second, Jiménez
elicited the fact that Pérez provided the authorities with
inconsistent versions of his story. As to Albino, Jiménez showed
a motive for implicating him and protecting Lechón, who he alleged
was potentially the true shooter: Albino was in a relationship with
Lechón.
Moreover, though the district court forbade any
questioning about death-penalty exposure, it never prohibited
Jiménez from discussing the plea and cooperation agreement itself.
To the contrary, Jiménez cross-examined both Pérez and Albino about
the details of the agreement and their understanding that they
would receive a more-lenient sentence if they cooperated. That
Jiménez could not emphasize just how severe Pérez's and Albino's
possible sentences could have been had they not cooperated did
nothing to detract from his central argument: both Pérez and Albino
were biased and motivated to provide incriminating testimony
against Jiménez in an attempt to look out for their own best
interests and receive a lighter sentence. We have previously
upheld a district court's decision to prohibit cross-examination
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into a cooperating witness's exposure to the death penalty so long
as the defendant could still probe into other aspects of the plea
agreement, and we see no reason to deviate from that position here.
See Capozzi, 486 F.3d at 724 ("[T]he district court did not commit
constitutional error when it declined to allow [defendant] to
inquire into the subject of [the cooperating witness's] avoidance
of the potential death penalty attached to this uncharged crime
which [the witness] had supposedly avoided by cooperating with the
government" because defendant "had considerable ammunition . . .
from which to demonstrate that [the witness] had a powerful motive
to testify in a manner supportive of the government.").
Reviewing the cross-examinations as a whole, we conclude
that Jiménez provided a "reasonably complete picture of the
witness[es]' veracity, bias, and motivation" despite the district
court's limitation, and therefore the limitation did not violate
the Confrontation Clause. See id. at 723; Brown, 975 F.2d at 5
(finding no violation of the Confrontation Clause where the
district court prevented the jury from hearing the potential
penalty of life imprisonment that a cooperating witness avoided by
pleading guilty because the jury "was clearly given sufficient
information from which it could conclude that the [accomplice] had
a substantial motivation to testify against petitioner," such as
the specifics of the accomplice's plea agreement, the witness's
criminal record, that the witness had given the police a different
-32-
statement than his testimony, that the witness had stolen the
murder weapon, and that the witness had reviewed the investigative
file before testifying); United States v. Twomey, 806 F.2d 1136,
1139-40 (1st Cir. 1986) (restricting cross-examination into an
unsubstantiated charge that the witness was involved in two murders
in part because "the circumstances from which the jury could decide
whether [the witness] might have been inclined to testify falsely
in favor of the government was adequately presented"); cf. Vega
Molina, 407 F.3d at 523-24 (finding a Sixth Amendment violation
where the district court precluded any cross-examination into a
cooperating witnesses's motive for enlisting in the robbery
scheme).
Having found that Jiménez's opportunity to impeach Pérez
and Albino satisfied this initial threshold, we turn to whether the
district court nevertheless abused its discretion in precluding
this line of questioning. "An abuse of discretion has occurred
only if the jury is left without 'sufficient information concerning
formative events to make a discriminating appraisal of a witness's
motives and bias.'" Twomey, 806 F.2d at 1140 (quoting Harris v.
United States, 367 F.2d 633, 636 (1st Cir. 1966)) (internal
quotation marks omitted); see also Ofray-Campos, 534 F.3d at 37
("'To establish that the district court has abused its discretion,
the defendant must show that the limitations imposed were clearly
prejudicial.'" (quoting United States v. Williams, 985 F.2d 634,
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639 (1st Cir. 1993))). In other words, the restrictions must be
"manifestly unreasonable or overbroad." Ofray-Campos, 534 F.3d at
36 (citation and internal quotation marks omitted).
Here, the district court's limitation was neither
unreasonable nor overbroad. We have already explained how Jiménez
questioned Pérez and Albino about the details of their plea and
cooperation agreements and about their other potential biases and
motivations for testifying. Moreover, as the district court
correctly noted, while a complaint alleging a death-eligible
offense was initially filed, Pérez and Albino were never indicted
on this charge and consequently were never actually exposed to the
death penalty. Still, when Jiménez argued that this was precisely
because of an agreement, the district court inquired further and
questioned the government and both witnesses' attorneys. Each
party provided the same information: the non-death-eligible
indictment was not a result of an agreement among the parties but
rather due to the lack of evidence that either Pérez or Albino knew
Sánchez would be killed at the Colmado Hernández mini market. The
district court accepted this explanation and, as a result, believed
that raising the issue with the jury would be misleading and
confusing.
Given the district court's "wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits" on
cross-examination, Van Arsdall, 475 U.S. at 679, this conclusion
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was not "manifestly unreasonable." Nor did it prejudice Jiménez.
See Ofray-Campos, 534 F.3d at 37. Accordingly, we find no abuse of
discretion by the district court in prohibiting Jiménez from
inquiring into the witnesses' potential exposure to the death
penalty. See Capozzi, 486 F.3d at 724 ("Nor did the court's
decision to bar the questioning constitute an abuse of its general
discretion. . . . Any risk that [the witness] would have been
charged with the death penalty offense was at best . . . wholly
speculative."); United States v. Álvarez, 987 F.2d 77, 82 (1st Cir.
1993) (finding no abuse of discretion where the district court
prevented the jury from learning of the exact penalties the witness
would face if found guilty); Twomey, 806 F.2d at 1139-40 (finding
no abuse of discretion where the district court restricted cross-
examination into a witness's supposed involvement in two murders to
establish bias in part because "[t]here is no evidence to support
such a charge, and, in fact, [the witness's] plea agreement
explicitly states that it does not protect him from prosecution for
crimes of violence").
C. Sufficiency of the Evidence for Count One
Finally, we must still address Jiménez's sufficiency
argument for double jeopardy purposes. See Marshall v. Bristol
Superior Court, 753 F.3d 10, 18 (1st Cir. 2014) ("It is black
letter law that 'the Double Jeopardy Clause precludes a second
trial once the reviewing court has found the evidence legally
-35-
insufficient.'" (quoting Burks v. United States, 437 U.S. 1, 18
(1978))). According to Jiménez, there was insufficient evidence to
support his conviction on Count One, the witness tampering charge,
and thus his Rule 29 motion for judgment of acquittal of Count One
should have been granted. We review this allegation de novo.
United States v. Pérez-Meléndez, 599 F.3d 31, 40 (1st Cir. 2010).
In doing so,
we examine the evidence, both direct and
circumstantial, in the light most favorable to
the jury's verdict. We do not assess the
credibility of a witness, as that is a role
reserved for the jury. Nor need we be
convinced that the government succeeded in
eliminating every possible theory consistent
with the defendant's innocence. Rather, we
must decide whether that evidence, including
all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant
committed the charged crime.
Id. (quoting United States v. Troy, 583 F.3d 20, 24 (1st Cir.
2009)) (internal quotation marks and emphasis omitted); see also
United States v. Sepúlveda, 15 F.3d 1161, 1173 (1st Cir. 1993).
This is a "formidable" standard of review, so "defendants
challenging convictions for insufficiency of the evidence face an
uphill battle on appeal." Pérez-Meléndez, 599 F.3d at 40 (quoting
United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008))
(internal quotation marks omitted).
In order to establish a violation of 18 U.S.C.
§ 1512(a)(1)(C), the government must prove beyond a reasonable
-36-
doubt that there was "(1) a killing or attempted killing,
(2) committed with a particular intent, namely an intent (a) to
'prevent' a 'communication' (b) about 'the commission or possible
commission of a Federal offense' (c) to a federal 'law enforcement
officer or judge.'" Fowler v. United States, 131 S. Ct. 2045, 2049
(2011) (quoting 18 U.S.C. § 1512(a)(1)(C)). Here, Jiménez concedes
that the government satisfied its burden for most of these elements
and only challenges the proof for the element that Sánchez was
killed in order to prevent her from providing information
concerning "the commission or the possible commission of a Federal
offense." According to Jiménez, the evidence showed that if he
killed Sánchez, it was done to prevent her from communicating his
whereabouts to federal officials so that he could be arrested on
the outstanding Puerto Rico murder charge for which he was a
fugitive. In support of this contention, Jiménez points to the
investigative notes which reported that Sánchez was "willing to
provide [Jiménez's] location to the feds to have him arrested on an
outstanding state warrant."
While we agree that a jury could have come to this
conclusion, we "need not conclude that only a guilty verdict
appropriately could be reached" in order to sustain the conviction.
Sepúlveda, 15 F.3d at 1173 (emphasis added). To the contrary, "it
is enough that the finding of guilt draws its essence from a
plausible reading of the record." Id.; see also Pérez-Meléndez,
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599 F.3d at 40 ("Nor need we be convinced that the government
succeeded in eliminating every possible theory consistent with the
defendant's innocence." (quoting Troy, 583 F.3d at 24) (internal
quotation marks omitted)). And a review of the record satisfies us
that the government has met its burden.
At trial, Tata testified that Sánchez was unhappy that
Alexis -- her boyfriend and Jiménez's brother -- was involved in
Jiménez's drug operation. As a result, she and Jiménez did not get
along, and whenever she would arrive at the drug point, Jiménez
would become upset and a confrontation would ensue. Tata further
testified that she recorded Sánchez saying that Sánchez would "turn
[Jiménez] in to Justice." Given that their rocky relationship
stemmed from Jiménez's drug activities and not his status as a
fugitive, the jury could have plausibly inferred that Jiménez
understood Sánchez to be referring to his drug trafficking
activities, which is clearly a federal offense. See, e.g., 21
U.S.C. §§ 841(a)(1) and 846 (criminalizing possession of controlled
substances with the intent to distribute and conspiracy to possess
controlled substances with the intent to distribute, respectively).
The government presented additional circumstantial
evidence supporting this inference. First, Aponte testified that
on June 8, 2010, an FBI task force officer had asked her not to
visit Sánchez because Alexis had been stopped and questioned about
whether Sánchez was providing information to the government.
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Aponte added that Sánchez later confirmed that she was cooperating
with the FBI, that Jiménez owned a drug point at Falín Torrech, and
that he had threatened her. Officer Irizarry similarly testified
that Sánchez had provided him with information regarding Jiménez's
drug operations.9 Pérez, meanwhile, testified that Sánchez had
bragged that she was going to take everybody down. It is plausible
to infer that both Alexis and Pérez would have reported these
incidents to Jiménez, and that Jiménez would have interpreted both
the questioning of Alexis and the use of "everybody" to refer to
the drug activity to which multiple people were involved, and not
to Jiménez's status as a fugitive.
Taking all of this evidence together and making plausible
inferences in the light most favorable to the jury's verdict, we
believe a rational factfinder could have concluded beyond a
reasonable doubt that Jiménez intended to prevent Sánchez from
providing information to federal authorities regarding Jiménez's
9
In his recitation of the facts, Jiménez suggests that the
government violated both 18 U.S.C. § 3432 and Rule 26.2 of the
Federal Rules of Criminal Procedure when it called Officer Irizarry
to testify in support of this element. Jiménez provides no legal
arguments or citations to support this claim, however, so it is
therefore waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[It is a] settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived. It is not enough
merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones." (internal citations
omitted)).
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narcotics operation -- a federal offense. Accordingly, his Rule 29
motion was properly denied.
III. Conclusion
To summarize, the district court's order requiring
Jiménez's expert witness, Stokes, to be informed of admissions made
by Jiménez in his proffer statement contravened the immunity
agreement, and thus violated Jiménez's due process rights. This
error was not harmless beyond a reasonable doubt, and therefore
Jiménez's conviction cannot stand. Should Jiménez be retried, it
will be well within the district court's discretion to limit the
cross-examinations of Pérez and Albino to prohibit any references
to their potential exposure to the death penalty, so long as
Jiménez is given the same sufficient leeway to establish a
reasonably complete picture of both Pérez's and Albino's veracity
as he was during this trial. Finally, even though the conviction
is reversed due to the violation of the immunity agreement, we
conclude for double jeopardy purposes that there was sufficient
evidence for the jury to have found that Jiménez killed Sánchez in
order to prevent her from providing information to federal
authorities concerning "the commission or the possible commission
of a Federal offense," and thus his Rule 29 motion for judgment of
acquittal as to Count One -- the witness tampering charge -- was
properly denied.
REVERSED.
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