United States Court of Appeals For the First Circuit
No. 15-1574
UNITED STATES OF AMERICA,
Appellee,
v.
MIGDOEL BERRÍOS-BONILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Lipez, Circuit Judges.
Rafael F. Castro-Lang, for appellant. Nicholas Warren Cannon, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
May 13, 2016 TORRUELLA, Circuit Judge. The police found a machinegun
under the passenger seat of a truck belonging to defendant-
appellant Migdoel Berríos-Bonilla ("Berríos"). After fleeing the
scene of the crime, Berríos contacted one of the individuals who
had been in the car with him and told her to lie about knowing
him. Berríos eventually turned himself in and a jury convicted
Berríos for two weapons possession counts under 18 U.S.C. § 922,
subsections (g)(1) and (o)(1), as well as witness tampering in
violation of 18 U.S.C. § 1512(b)(1). Appealing from the United
States District Court for the District of Puerto Rico, Berríos
challenges the sufficiency of the evidence supporting his
convictions and alleges several procedural errors. Unconvinced
by Berríos's arguments, we affirm.
I. Background
On the night of August 16, 2014, Berríos lent his Ford
pickup truck to Rolando Torres-Fernández ("Torres"). Torres
picked up five other men and met up with María Rivera-Mulero
("Rivera") and Verónica Álamo-Gómez ("Álamo") at a bridge.
Accompanied by the five unidentified males, Torres drove Berríos's
truck to a bar to meet Berríos, while Rivera and Álamo followed in
Rivera's car.
Berríos, Torres, Rivera, Álamo, and two of the
unidentified men left and drove in Berríos's truck to a second
-2- bar. At the second bar, Berríos and Álamo danced and Álamo felt
something hard around the back of Berríos's waist although she
could not tell what it was. The group then left the bar to go to
a restaurant. After eating, the two unidentified men (who had
been sitting in the front driver and passenger seats) were dropped
off.
Torres drove the remaining members of the group to a
motel: Rivera was in the front passenger seat, Berríos sat behind
the driver seat, and Álamo sat behind the passenger seat. Once
they arrived at the motel, Torres exited and began talking to a
motel employee while Berríos, Álamo, and Rivera waited in the car.
Berríos left the truck when he noticed Torres and the motel
employee arguing. Berríos asked Torres what he was doing and said
they should leave. The group drove away from the motel (sitting
in the same seats of the car as before), but the motel employee
called the police to report the incident1 and gave a description
of Berríos's truck.
Three Puerto Rico Police Department officers responded
to the call. The officers spotted a truck matching the dispatcher's
description and followed it until it stopped in front of a
1 Although not directly discussed at Berríos's trial, Torres was charged with assault and robbery for the events that occurred at the motel.
-3- restaurant. Álamo had spilled food on herself and exited the
truck from the rear passenger-side door to clean up. One of the
officers, Ángel Hernández-Nieves ("Officer Hernández"), exited the
police car and began approaching the truck. As Officer Hernández
neared, he saw Berríos stick his head out of the open rear
passenger-side door and look around. Officer Hernández then
announced himself and told everyone to exit the vehicle. Berríos
fled, exiting from the rear driver-side door. Officer Hernández
pursued Berríos but was unable to catch him.
Álamo, Rivera, and Torres remained at the scene. A
second officer asked Torres to exit the vehicle and stand at the
back of the truck on the passenger side. At that point, the
officer noticed through the open rear passenger-side door a firearm
sticking out from underneath the passenger seat. Upon further
examination, the police concluded it was a Glock pistol modified
to shoot automatically. The police subsequently searched
Berríos's truck and found two magazines under the same seat as the
pistol, Berríos's driver's license inside a pocket on the rear
passenger-side door, and a cellphone inside a pocket on the rear
driver-side door. They arrested Álamo, Rivera, and Torres.
Álamo was released and subsequently spoke with Berríos
twice over the phone. In one conversation, Berríos told Álamo
"[t]hat if [she] was asked about him [she] should say [she] didn't
-4- know who he was" and that "everything is [Torres], is from him."
Berríos eventually turned himself in to the police on August 25,
2014.
Berríos was charged with possession of a firearm by a
prohibited person and possession of a machinegun as well as witness
tampering. A jury found Berríos guilty on all counts. This
timely appeal followed.
II. Sufficiency Claims
Berríos first argues that the Government presented
insufficient evidence to convict him on all three counts. This
court "review[s] the sufficiency of the evidence for a conviction
de novo," drawing "all reasonable inferences in the light most
favorable to the prosecution." United States v. Rosado-Pérez, 605
F.3d 48, 52 (1st Cir. 2010). We conclude Berríos has failed to
meet this rigorous standard.
A. Weapons Charges
Berríos stipulated to all but the knowledge element of
his weapons possession charges.2 He argues, as he did at trial,
2 18 U.S.C. § 922(g)(1) makes it unlawful
for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
-5- that the Government failed to prove beyond a reasonable doubt that
he knowingly possessed the machinegun found in his vehicle.
"Knowing possession of a firearm may be proved through
either actual or constructive possession." United States v.
Williams, 717 F.3d 35, 39 (1st Cir. 2013). An individual
constructively possesses something when he or she "knowingly has
the power and intention at a given time to exercise dominion and
control over an object, either directly or through others."
United States v. Ocampo-Guarin, 968 F.2d 1406, 1409 (1st Cir. 1992)
(quoting United States v. Lamare, 711 F.2d 3, 5 (1st Cir. 1983)).
A jury may infer knowledge from circumstantial evidence. United
States v. Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014). "For
constructive possession of a firearm in particular, the requisite
knowledge and intention can be inferred from circumstances 'such
as a defendant's control over the area where the contraband is
found . . . .'" Id. (quoting United States v. McLean, 409 F.3d
492, 501 (1st Cir. 2005)). In such a case, the record "must
contain evidence of 'some action, some word, or some conduct that
links the individual to the [firearm] and indicates that he had
18 U.S.C. § 922(o)(1) makes it "unlawful for any person to transfer or possess a machinegun" subject to certain exceptions not relevant here.
-6- some stake in it, some power over it.'" Id. (alteration in
original) (quoting McLean, 409 F.3d at 501).
Contrary to Berríos's arguments, the Government did not
rely on his mere proximity to the weapon to prove possession.
Rather, it presented strong circumstantial evidence connecting
Berríos to the machinegun and ruling out the other potential
sources of the weapon. Drawing all inferences in the light most
favorable to the prosecution, the timeline of events unfolded as
follows: the police pulled up behind Berríos's vehicle; Álamo
exited the car from the rear passenger-side door; Berríos stuck
his head out the rear passenger-side door to look around; Berríos
saw Officer Hernández; and Berríos ran out the rear driver-side
door. This sequence of events places Berríos as the last person
to occupy the rear passenger seat, close to where the police found
the machinegun. Moreover, the Government presented additional
evidence connecting Berríos to the rear passenger seat, including
that his driver's license was in a pocket inside the rear passenger
side door. A reasonable jury could accept this testimony and
conclude that Berríos saw the police, became worried about them
finding the machinegun on his person, and placed it in the most
convenient hiding place inside the car before he fled.
This conclusion is further strengthened by two
observations made by Álamo: (1) that she felt an unidentified hard
-7- object around the back of Berríos's waist earlier that night and
(2) that she had not seen the machinegun until her arrest. Álamo
sat in the rear passenger seat two times before the gun was
discovered -- on the drive from the second bar to the restaurant
and from the restaurant to the truck's ultimate stopping place.
The police testified (and the trial exhibits -- photographs of the
truck's interior -- show) that the machinegun was not fully under
the passenger seat, but sticking out part of the way. The fact
Álamo did not notice the machinegun earlier strongly suggests it
was not under the passenger seat until she exited the vehicle and
Berríos sat there. This, in turn, helps rule out any of the
unidentified men or Torres and Rivera (who were sitting in the
front seats) as the machinegun's owner.
We also note that the Government presented evidence of
Berríos's consciousness of guilt. Berríos argues that he fled
because he was on probation and did not want to be associated with
Torres's actions at the motel. We reject Berríos's contention
that an innocent explanation was equally as likely as a guilty one
in light of the above-mentioned evidence. See Bourjaily v. United
States, 483 U.S. 171, 179-80 (1987) ("[I]ndividual pieces of
evidence, insufficient in themselves to prove a point, may in
cumulation prove it."). We also note that Berríos's subsequent
-8- attempt to have Álamo deny knowing him further strengthens the
inference that Berríos was conscious of his guilt.
Finally, we reject Berríos's argument that the
numerousness of the truck's occupants created a reasonable doubt
as to who placed the machinegun under the passenger seat. The
Government presented evidence that the machinegun did not belong
to Torres because another firearm was found under the driver's
seat. As we previously stated, the timeline of events creates a
reasonable inference that the machinegun was not under the
passenger seat before the police arrived and was likely placed
there by Berríos. We also find it dubious that those men would
have left the machinegun there after they were dropped off.
"[F]actfinders may draw reasonable inferences from the evidence
based on shared perceptions and understandings of the habits,
practices, and inclinations of human beings," United States v.
Ortiz, 996 F.2d 707, 712 (1st Cir. 1992), and people are generally
not inclined to forget or store machineguns in cars that do not
belong to them. Despite the truck's numerous occupants, a
reasonable jury could have concluded that Berríos placed the
machinegun under the passenger seat and convicted him of both
weapons possession offenses.
-9- B. Witness Tampering
We turn now to Berríos's witness tampering conviction.
To convict Berríos of witness tampering, the jury needed to find
that Berríos "corruptly persuade[d] another person, or attempt[ed]
to do so, . . . with intent to influence, delay, or prevent the
testimony of any person in an official proceeding [or] cause or
induce any person to withhold testimony." 18 U.S.C. § 1512(b).
Berríos does not contend that calling Álamo and asking
her to tell the police that she did not know him would not qualify
as witness tampering. He argues only that the jury should not
have believed Álamo's testimony based on her failure to mention
him asking her to lie in an earlier interview with a federal agent
and that it was implausible that he told Álamo to lie but not
Rivera (the latter of whom did not testify). These arguments go
to Álamo's credibility as a witness and "it is not the appellate
court's function to weigh the evidence or make credibility
judgments." Ortiz, 966 F.2d at 711. Viewing Álamo's testimony
"in the light most favorable to the prosecution," a reasonable
jury could have concluded that Berríos spoke to her and attempted
to influence her testimony. Rosado-Pérez, 605 F.3d at 52. Thus,
we affirm on this charge as well.
-10- III. Motion to Play Tape
In addition to his sufficiency challenge, Berríos also
claims that the trial court impaired his right to cross-
examination. Specifically, Berríos argues that the district court
should have allowed him to introduce an audio recording of a
September 2, 2014, interview between Álamo and a federal agent as
impeachment evidence. During this interview, Álamo did not
mention that Berríos had told her to lie about knowing him.
Berríos sought to use this omission to impeach Álamo's credibility
and moved to admit excerpts of an audio recording of the interview
(which was in Spanish) and a translated transcript during his
cross-examination. After listening to the tape, the district
court determined that Berríos could show Álamo the interview
transcript whenever she made contradictory statements and ask her
if the transcript showed she told the federal agent something
different. Nonetheless, the district court ruled against playing
the tape.
"The Sixth Amendment protects a defendant's right to
effective cross-examination of key adverse witnesses." United
States v. Martínez-Vives, 475 F.3d 48, 53 (1st Cir. 2007). We
engage in a two-step review in evaluating challenges to a trial
court's limitation of a cross-examination.3 Id. First, we review
3 For purposes of review we assume, without deciding, that
-11- de novo to "determine whether [the] defendant 'was afforded a
reasonable opportunity to impeach adverse witnesses' consistent
with the Confrontation Clause." Id. (quoting United States v.
Callipari, 368 F.3d 22, 36 (1st Cir. 2004), vacated and remanded
on other grounds, 543 U.S. 1098 (2005)). If that threshold is
met, we review the specific limitation imposed by the trial court
on the defendant's cross-examination for an abuse of discretion.
Id. Trial courts may restrict cross-examination to prevent "undue
prejudice, confusion of the issues, witness badgering, redundancy,
or questioning that appears to be of marginal relevance." United
States v. Vega-Molina, 407 F.3d 511, 523 (1st Cir. 2005).
Under step one of this analysis, Berríos was afforded a
reasonable opportunity to impeach Álamo on cross-examination.
Berríos asked Álamo if she mentioned Berríos's request for her to
lie to the federal agent who interviewed her on September 2. After
being shown the interview transcript, Álamo stated she had not.
There is no doubt that Berríos was able to impeach Álamo and
Berríos does not argue otherwise. Rather, he argues only that his
ability to do so was limited because he was not able to play the
tape. This claim we review only for abuse of discretion.
Berríos's claim was adequately preserved.
-12- We do not believe the district court abused its
discretion in light of the specific request Berríos made. Berríos
did not ask the district court to play the entire tape or to play
the tape in a manner similar to how the transcript was used (i.e.,
playing short snippets and asking Álamo if her testimony was
different from what she said on the tape). Rather, he asked the
district court to play the portion of the interview relating to
the obstruction charge. Berríos argues that the district court
should have allowed him to play the tape of the interview because
it was important for the jury to hear Álamo's tone to judge her
credibility -- specifically, to hear that Álamo was not afraid and
withholding information out of fear. Even assuming that hearing
Álamo's tone could have been helpful for the jury, we think the
district court properly balanced this interest against the
Government's valid hearsay objections and its own concerns about
completeness. The Government's motion stated that it opposed the
district court playing only the parts of the tape that "contain[ed]
self-serving hearsay" -- namely Berríos proclaiming his innocence
to Álamo. Berríos fails to cite an evidentiary rule under which
these statements would have been admissible. Moreover, we note
that Berríos requested that the district court not play the entire
tape because Álamo also made statements that suggested she was
afraid of Berríos during the interview. The district court also
-13- expressed concern that playing only Berríos's requested portion of
the tape would prejudice the Government. Given these concerns,
the district court properly weighed the potential for jury
confusion and prejudicial impact in denying Berríos's motion to
play the tape.
Berríos argues this holding would contradict our
decision in United States v. Meises, 645 F.3d 5 (1st Cir. 2011).
It is true that in Meises we expressed concerns about the jury's
ability to assess witness credibility based on a district court's
decision to not play an audio tape. Id. at 25-26. Meises,
however, involved a dispute between the defendant and the
government about why incriminatory statements allegedly made by
the defendant (as testified to by a confidential informant) could
not be heard on the taped conversation -- the government argued
the statements were inaudible due to malfunctioning recording
equipment while the defendant argued he never said them. Id. We
viewed the quality of the audio recording as potentially important
to the defendant's ability to respond to the government's argument.
Id. In other words, Meises involved a dispute about the recording
itself. Berríos's case does not involve such a dispute. Thus,
the helpfulness of the tape itself was less, and in light of the
concerns noted by the district court, the potential for jury
-14- confusion and prejudice was higher. We find no abuse of
discretion.4
IV. Jury Instructions
Finally, Berríos contends that the district court's jury
instructions contained two errors. The parties disagree over how
to view Berríos's claims and the corresponding standard of review.
Berríos frames the district court's decisions as refusals to give
a requested instruction, which we review de novo. See United
States v. Baird, 712 F.3d 623, 627-28 (1st Cir. 2013). The
Government, however, argues that the district court gave Berríos's
requested instruction and his arguments concern the district
court's phrasing, which we review for abuse of discretion. See
id. at 628. Because Berríos's challenge fails even if we apply
the standard of review most favorable to him, we assume without
deciding that the district court refused his requested instruction
and our review is de novo. See United States v. Rivera-González,
809 F.3d 706, 710 (1st Cir. 2016).
In determining whether a district court's refusal to
give a jury instruction is reversible error, "we look to see
4 In passing, Berríos argues hearing Álamo's tone during her interview was relevant evidence improperly excluded by the district court. We deem this argument waived for lack of development. Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
-15- whether the requested instruction was '(1) correct as a matter of
substantive law, (2) not substantially incorporated into the
charge as rendered, and (3) integral to an important point in the
case.'" United States v. Duval, 496 F.3d 64, 77 (1st Cir. 2007)
(quoting White v. N.H. Dep't of Corr., 221 F.3d 254, 263 (1st Cir.
2000)). Neither of Berríos's claims pass this test.
A. "Constructive Possession" Instruction
First, Berríos claims that the district court should
have instructed the jury that "the mere fact that the firearm was
found in the defendant's vehicle is insufficient by itself to
establish actual or constructive possession." Without this
instruction, Berríos perceives a risk that the jury concluded he
possessed the machinegun merely because it was found in his truck.
We agree with the Government that Berríos's claim fails
because his proposed instruction was substantially incorporated
into the instructions the district court gave. This court's
decision in United States v. Duval is particularly instructive.
In that case, we found no reversible error where the trial court
refused to instruct the jury that "knowledge alone . . . [or] mere
presence in the vicinity of the object is insufficient to prove
possession." Duval, 496 F.3d at 77. The instructions explained
that (1) constructive possession included both the "power and
intention to exercise control or domination and control over
-16- something" and (2) the jury needed to find that the defendant
"knowingly possessed the firearms." Id. at 78. We viewed these
instructions as sufficient to prevent the jury from "convict[ing]
based on [the defendant's] mere knowledge of the firearms." Id.
The district court's instructions in Berríos's case
cleared this threshold. As in Duval, the district court defined
constructive possession as when a person "has both the power and
the intention to exercise control over something" and instructed
that the jury needed to find that Berríos "knowingly associated
himself with the crime charged." Moreover, the district court
told the jury that "[m]erely being present at the scene of a crime
or merely knowing that a crime is being committed or is about to
be committed is not sufficient conduct to find" guilt. The
district court's instructions "plainly instructed [the jury] that
it needed to find knowing possession" and did not allow the jury
to find Berríos guilty based simply on his ownership of and
presence in the vehicle in which the machinegun was found. Id.5
5 Berríos makes two additional arguments that we can quickly dismiss. First, Berríos argues the risk that the jury convicted him based on his ownership of the truck was compounded by the district court explaining actual possession to the jury by saying "I am in possession of a cell phone right now, and a pen in my pocket, in my shirt. That's actual possession." The district court preceded this statement by defining actual possession as requiring "direct physical control." This remark did not invite the jury to conflate actual possession with ownership.
Second, Berríos argues that the district court's failure to
-17- B. "Weaker or Less Satisfactory Evidence" Instruction
Next, Berríos argues that the district court should have
instructed the jury that "[i]f a party offers weaker or less
satisfactory evidence when stronger and more satisfactory evidence
should have been produced at trial, you may, but are not required
to, consider this fact in your deliberation." Berríos views this
instruction as important to two types of evidence the Government
failed to produce. First, Berríos argues that if the jury had
been given this instruction, it would have been able to draw an
inference in his favor based on the Government's failure to have
the machinegun tested for his fingerprints. Second, Berríos
argues that the jury would have drawn an inference in his favor
from the Government's failure to present Rivera as a witness.
This claim also falters because Berríos's proposed
instruction was already substantially incorporated into the charge
as rendered. The district court told the jury that "[a] reasonable
doubt may arise not only from the evidence presented, or produced,
give his requested instruction was particularly prejudicial because "[t]he prosecutor during his closing argument requested the jury find [Berríos] guilty because the vehicle belonged to him so they could infer [the machinegun] was his." Although the prosecutor noted Berríos's ownership of the truck, the focus of his argument was on placing Berríos in the rear passenger seat right before the machinegun was discovered. The prosecutor did not invite the jury to convict Berríos solely based on his ownership of the truck.
-18- but also from a lack of evidence." (Emphasis added). Based on
this instruction, we fail to see how the jury was prevented from
understanding that it could find a reasonable doubt based on the
lack of fingerprint evidence connecting Berríos to the machinegun
or corroborating testimony from Rivera.
Our conclusion is further bolstered by our case law
regarding "missing evidence" instructions. Such instructions tell
the jury that it may draw an adverse inference "when a party has
exclusive control over relevant, noncumulative evidence," yet
fails to produce it. United States v. Rose, 104 F.3d 1408, 1417
(1st Cir. 1997); see also United States v. St. Michael's Credit
Union, 880 F.2d 579, 597-98 (1st Cir. 1989) (describing "missing
witness" instruction). In United States v. Rose, we concluded a
district court did not commit reversible error by declining to
give such an instruction based on the government's failure to
collect fingerprints on evidence in its possession. Rose, 104
F.3d at 1408. This instruction, in our view, was unnecessary
because the defendant's counsel was "free to argue that, in the
absence of [fingerprint evidence], the government had not
sufficiently linked [the defendant] to the crime." Id. Here,
Berríos did in fact argue that the Government's case was full of
holes due to its failure to produce fingerprints or Rivera's
-19- testimony. We thus view Berríos's requested instruction as
unnecessary and find no reversible error.6
V. Conclusion
For the foregoing reasons, we affirm Berríos's
convictions.
Affirmed.
6 Berríos also argues we should reverse for cumulative error. Finding no errors, we decline. United States v. Stokes, 124 F.3d 39, 43 (1st Cir. 1997) ("[C]umulative-error analysis is inappropriate when a party complains of the cumulative effect of non-errors.").
-20-