United States v. Cruz Quilan

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 94-2217

        No. 95-1390

                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 JOSE R. CRUZ-KUILAN,



                                Defendant, Appellant.



                                 ____________________


APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________



                                        Before



                       Selya, Boudin, and Lynch, Circuit Judges.
                                                 ______________



                                 ____________________



            Miriam Ramos Grateroles for appellant.
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            Miguel A.  Pereira, Assistant  United States  Attorney, with  whom
            __________________

        Guillermo  Gil, United States Attorney,  was on brief,  for the United
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        States.



                                 ____________________



                                   February 5, 1996

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LYNCH, Circuit  Judge.   This is an  appeal from  a
                      LYNCH, Circuit  Judge.
                             ______________



conviction for a  carjacking which resulted  in the owner  of



            the car being shot  to death in front of his  wife and son in



            the  carport of their home in Puerto Rico.  Jose Cruz-Kuilan,



            age 20  at the time of the  crime, was convicted of violating



            18  U.S.C.   2119(3), the carjacking statute, and 18 U.S.C.  



            2, aiding and  abetting in  the same, and  sentenced to  life



            imprisonment.   The primary argument on appeal -- that it was



            error to  allow expert testimony from  a forensic pathologist



            and to admit photographs  of the victim's wounds --  is based



            on  a theory this court recently rejected in United States v.
                                                         _____________



            Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995).  Because the other
            ____________



            arguments presented are without merit, we affirm.



                      The crime was cold-blooded and brutal.  Cruz-Kuilan



            and  two companions,  Marrero  Santiago  and Rangel  Pizzini,



            decided to steal a car, settled on a Buick Le Sabre they saw,



            and followed it  in their own car.   Theodore Edward  Fuhs, a



            businessman, and his wife Luz  Martinez Fuhs were driving  to



            their  home  in  Levittown, Puerto  Rico,  in  the  Le Sabre,



            unaware of being followed.   Their son Carl was  outside when



            his  parents  pulled  into  the  "marquesina,"  the  carport.



            Marrero and Cruz-Kuilan walked  up to the car before  Mr. and



            Mrs. Fuhs could get out.  Pizzini remained in the assailants'



            car.   In Spanish, Marrero  ordered Mr. Fuhs out  of the car.



            Mr.  Fuhs, a continental American citizen,  did not appear to



            understand.  As  Mr. Fuhs got out of the  car, Marrero, angry


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at  how slowly Fuhs was  moving, pistol whipped  him twice on



            the head.   Mr.  Fuhs  lunged for  Marrero  and the  two  men



            toppled.   Cruz-Kuilan moved to  within two feet  of Mr. Fuhs



            and fired point  blank at his  back.  Mr.  Fuhs was  mortally



            wounded.  One of  the bullets  passed through  him to  injure



            Marrero, underneath.  Cruz-Kuilan and Marrero got into the Le



            Sabre and fled.   Realizing  Marrero was in  need of  medical



            care and would be  questioned, they torched the Le  Sabre and



            prepared a story.   When Marrero sought medical care,  he was



            indeed  questioned.    His story  began  to  unravel and  the



            arrests followed in the next several months.



                      At   trial,  both   Marrero   and  Pizzini   turned



            government  witnesses   in  exchange  for  leniency.     They



            identified Cruz-Kuilan.  While Mrs. Fuhs and her son provided



            important  corroborating  testimony,  neither could  identify



            Cruz-Kuilan as one of the assailants.   It took the jury  two



            and one-half hours to convict.



                      On  appeal Cruz-Kuilan  makes these  arguments: (i)



            that the district court  erred in admitting evidence relating



            to Mr. Fuhs'  death; (ii) that the evidence  was insufficient



            for  a  guilty verdict;  (iii)  that  the prosecutor  in  his



            closing argument improperly  vouched for  the credibility  of



            the government's witnesses; and  (iv) that the district court



            erred  in denying a new trial  motion based on after-acquired



            evidence of a government witness' prior bad acts.            


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I. Admissibility of Evidence of Death
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                      Cruz-Kuilan's main argument is that he  was charged



            with  carjacking,1 not with murder,  and so it  was error for



            the trial court  to admit evidence  of Mr. Fuhs'  death.   In



            particular, he  complains about  the testimony of  a forensic



            pathologist who  traced the path  of the bullets  through Mr.



            Fuhs' body and of  the admission of photographs of  Mr. Fuhs'



            wounds.  Such  evidence, he  says, was not  relevant and  was



            unduly prejudicial.  The statute itself, though, requires not



            just  theft  of a  car while  possessing  a firearm,  but the



            taking of  a car from  another "by  force and violence  or by



            intimidation, or attempts to do so." 18 U.S.C.   2119.  



                      The   global  challenge  to  the  admissibility  of



            evidence of death  in a carjacking case  was soundly rejected



                                
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            1.  The carjacking statute provides:



                      Whoever, possessing a firearm . . . takes

                      a   motor   vehicle    that   has    been

                      transported,  shipped,   or  received  in

                      interstate or foreign  commerce from  the

                      person  or presence  of another  by force

                      and  violence  or  by   intimidation,  or

                      attempts to do so, shall --

                      (1)   be  fined   under  this   title  or

                      imprisoned not  more  than 15  years,  or

                      both,

                      (2)  if  serious  bodily  injury  .  .  .

                      results, be  fined  under this  title  or

                      imprisoned  not  more than  25  years, or

                      both, and

                      (3) if death results, be fined under this

                      title  or  imprisoned for  any  number of

                      years up to life, or both.



            18 U.S.C.   2119 (Supp. V 1993).



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in United States  v. Rivera-Gomez, 67  F.3d 993, 996-98  (1st
               _____________     ____________



            Cir.  1995) ("It is difficult  to conceive of  a situation in



            which the death  of a victim will not be  relevant to the use



            of force  and violence during the commission  of an attempted



            carjacking.")  (citing  United  States v.  Rodriguez,  871 F.
                                    ______________     _________



            Supp. 545, 549 (D.P.R.  1994) (admitting evidence of victim's



            death  and means by which it was accomplished as relevant and



            "highly persuasive"  of "force and violence"  in a carjacking



            prosecution)).  The death in this case was  a central part of



            the carjacking and  its "force and  violence" component.   As



            such it was relevant.



                      Cruz-Kuilan  argues  that  even  if  relevant,  the



            evidence was "unfairly prejudicial" under Rule 403.  See Fed.
                                                                 ___



            R. Evid. 403.  But here, as in Rivera-Gomez, the "evidence at
                                           ____________



            issue  [was] so  tightly linked  to guilt  as defined  by the



            elements  of the  offense,  [that] it  would be  surpassingly



            difficult to  justify a finding of  unfair prejudice stemming



            from its introduction."  67 F.3d at 997.  The photographs and



            testimony  by  a  forensics  expert  went to  more  than  the



            determination of the "force and violence" element.  They also



            went to  corroborating the  government's theory of  the case.



            The  evidence showed  lacerations on Mr.  Fuhs' head  and the



            entry  and exit points of the bullets that passed through his



            body.    The  lacerations  on  Mr.  Fuhs'  head  corroborated



            Marrero's  story that  he had  struck Mr.  Fuhs twice  on the


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head.  Similarly, the  paths of the bullets  corroborated the



            government's theory  that one  of the bullets  shot by  Cruz-



            Kuilan passed through  Mr. Fuhs and proceeded  to hit Marrero



            while he was under Mr. Fuhs.



                      Our standard  of review on questions of evidentiary



            relevance balanced against prejudicial effect is for abuse of



            discretion.  Id.  at 997.  "A decision  by the district court
                         ___



            on a Rule 403 determination must stand absent a demonstration



            of  'extraordinarily  compelling  circumstances.'"     United
                                                                   ______



            States  v. Lombard, _ F.3d _, _,  No. 94-2000, slip op. at 50
            ______     _______



            (1st  Cir. Dec. 15, 1995) (quoting United States v. Lewis, 40
                                               _____________    _____



            F.3d 1325, 1339  (1st Cir.  1994)).  Defendant  has shown  no



            such circumstances, and there was no abuse.



            II. Sufficiency of Evidence
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                      Cruz-Kuilan  argues  that  there  was  insufficient



            evidence for the  jury to have found  him guilty, and  so the



            district court erred in not granting his motion for acquittal



            under Fed. R. Crim. Proc. 29.  In reviewing a sufficiency  of



            the evidence claim we  look at the evidence in the light most



            favorable to the verdict.  See United States v. Cotto-Aponte,
                                       ___ _____________    ____________



            30 F.3d 4, 5 (1st Cir. 1994).



                      The argument fails.  That the jury chose to believe



            the  testimony of Cruz-Kuilan's  fellow carjackers -- despite



            his pungent cross examination of their characters and motives



            --  and  to disbelieve  the  alibi  offered by  Cruz-Kuilan's


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estranged  wife and  mother,  was well  within its  province.



            Credibility determinations  are  uniquely within  the  jury's



            province,  and we defer to the jury's verdict if the evidence



            can support varying inferences.  See United States v. Rivera-
                                             ___ _____________    _______



            Sola, 713 F.2d  866, 869  (1st Cir. 1983);  United States  v.
            ____                                        _____________



            Winter, 663  F.2d 1120, 1127  (1st Cir. 1981),  cert. denied,
            ______                                          _____ ______



            460 U.S. 1011 (1983).



            III.  Closing Argument
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                      Cruz-Kuilan  makes   a  misplaced  attack   on  the



            prosecution's  closing argument.   Pulling  together numerous



            statements  made by  the  prosecution in  its closing,  Cruz-



            Kuilan asserts  that the  prosecution improperly vouched  for



            the  credibility of  its witnesses.   Since no  objection was



            made at  the time, our review is for plain error.  See United
                                                               ___ ______



            States v. Diaz-Martinez, 71 F.3d 946, 950 (1st Cir. 1995).
            ______    _____________



                      In  essence, defendant  objects  to  statements  in



            closing by  the  prosecution that  the  jury should  come  to



            believe  on the evidence that the events occurred the way the



            government's witnesses said they did.  That is not vouching.



                      Improper  vouching  occurs  where  the  prosecution



            places the  "prestige of the  government behind a  witness by



            making  personal assurances about  the witness' credibility."



            United  States v. Neal, 36  F.3d 1190, 1207  (1st Cir. 1994).
            ______________    ____



            Arguing that a witness  is speaking the truth because  he has



            reason to do  so is  not "making personal  assurances."   See
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United States v. Dockray,  943 F.2d 152, 156 (1st  Cir. 1991)
            _____________    _______



            (informing the  jury of the effect  of a plea  agreement on a



            witness'  incentives to  testify  truthfully is  not improper



            vouching).



                      As   well,  the   prosecution's  argument   was  an



            appropriate  response  to  Cruz-Kuilan's own  arguments  that



            Marrero and Pizzini were less worthy of belief as a result of



            their plea bargains.  See United States  v. Mejia-Lozano, 829
                                  ___ _____________     ____________



            F.2d 268, 274 (1st Cir. 1987) (prosecution has greater leeway



            in responding  to attack on, and  attempting to rehabilitate,



            its witnesses).



            IV.  New Trial Motion
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                      Cruz-Kuilan's final effort is to claim error in the



            denial of  his request  for a  new trial.   That  request was



            based in  turn on a claim that  the prosecution had failed to



            provide the defense with information about certain "prior bad



            acts" committed by Pizzini.  Cruz-Kuilan asserts that shortly



            before trial  in this  case, the Commonwealth's  courts found



            probable cause for murder, weapons possession, and possession



            of  a  stolen  vehicle  against  Pizzini.2    We  review  the



                                
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            2.  Defense counsel has represented  to us that Pizzini later

            pleaded guilty in the  Commonwealth's courts to second degree

            murder,  to violating the weapons laws and to having a stolen

            vehicle.  But that plea was not entered until close to a year

            after  the federal trial here.   Furthermore, this  was not a

            case where defendant claimed that Pizzini,  not he, fired the

            weapon.  Such a claim would  be of no moment given the aiding

            and abetting charge  and that the substantive charge  was not

            murder, but carjacking.   In any event, Cruz-Kuilan's defense



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district court's determination  for an  abuse of  discretion.



            See United States  v. Pettiford,  962 F.2d 74,  77 (1st  Cir.
            ___ _____________     _________



            1992).



                      Pizzini   was  hardly  of  sterling  character  and



            admitted  to  a  prior  robbery conviction  and  three  prior



            robbery  charges.     Indeed,  the  prosecution   itself  had



            described Pizzini  as a  frequent participant  in carjackings



            and  a convicted robber.   Pizzini's  testimony was  that he,



            Marrero, and  Cruz-Kuilan planned  to steal  a  car, that  he



            drove  everyone  to Levittown  where they  spotted a  car and



            followed  it and that  he dropped Marrero  and Cruz-Kuilan at



            the carport and  left.  He did not see Mr. Fuhs being held at



            gun point or being shot.



                      We assume arguendo, as did the district court, that



            the  prosecution knew or should have  known of the additional



            asserted  "prior  bad  acts"  evidence, without  in  any  way



            impugning the government here.  The question for the district



            court  as to the new  evidence is whether  "it is 'material,'



            [and]  it  is  'material'  only  if there  is  'a  reasonable



            probability' that the evidence would have changed the result,



            and a  'reasonable probability' is 'a  probability sufficient



            to undermine  confidence in the outcome.'"   United States v.
                                                         _____________



            Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) (quoting United
            _________                                              ______



            States v.  Bagley, 473 U.S.  667, 682 (1985)),  cert. denied,
            ______     ______                               _____ ______



                                
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            was that he was not there at all.      



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114 S. Ct. 2714 (1994).  Given Pizzini's admittedly extensive



            criminal  past, it  was not  an abuse  of discretion  for the



            district court  to find  that the  lack of  additional cross-



            examination  on  the  same   well  developed  theme  did  not



            undermine  confidence in  the  jury verdict  of  guilt.   Cf.
                                                                      ___



            Sepulveda,  15 F.3d at 1219 (no abuse of discretion in denial
            _________



            of new trial request where the newly disclosed information at



            issue would  have  at most  impeached  further a  witness  of



            already "dubious"  credibility).  In  light of all  the other



            evidence, it is highly improbable that the "newly discovered"



            evidence would have  mattered a whit.  There was  no abuse of



            discretion by the district court. 


Affirmed.    
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