United States Court of Appeals For the First Circuit
No. 08-2108
UNITED STATES OF AMERICA, Appellee,
v.
FÉLIX ALBERTO CASTRO-DAVIS, a/k/a Belto, a/k/a Bertito, Defendant, Appellant.
No. 08-2109
FÉLIX GABRIEL CASTRO-DAVIS, a/k/a Gaby, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge, Baldock,* Senior Circuit Judge, and Lipez, Circuit Judge.
Alan D. Campbell, for appellant Félix Alberto Castro-Davis. Andrew S. Crouch, for appellant Félix Gabriel Castro-Davis.
* Of the Tenth Circuit, sitting by designation. Julia M. Meconiates, 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.
July 16, 2010
-2- TORRUELLA, Circuit Judge. This is an appeal from the
convictions of Defendants-Appellants Félix Alberto Castro-Davis
("Alberto") and Félix Gabriel Castro-Davis ("Gabriel")
(collectively "defendants").1 Alberto and Gabriel were found
guilty of conspiracy to commit carjacking, in violation of 18
U.S.C. § 371, aiding and abetting a carjacking resulting in death,
in violation of 18 U.S.C. §§ 2119(3) and 2, and using or carrying
a firearm in connection with a carjacking, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2. They appeal their convictions
based on the sufficiency of the evidence, the introduction of
defendants' statements against co-defendants, the making of
prejudicial statements by the prosecution, and flawed jury
selection and sentencing procedures.
After careful consideration, we affirm the convictions of
both defendants, but vacate their sentences and remand to the
district court.
1 These two cases were consolidated with United States v. Figueroa Cartagena, No. 08-2110, and argued before this court on November 2, 2009. Although the issues presented in all three appeals are substantially similar, we opt to decide the cases separately. See, e.g., United States v. Caraballo, 552 F.3d 6, 7 n.1 (1st Cir. 2008).
-3- I. Background
A. Factual Background2
On the morning of July 15, 2006, Héctor Pérez-Torres
("Pérez") left his home in Caguas, Puerto Rico at 11:00 am to drive
his bolita route.3 Pérez had been a bolitero for many years, and
was driving his wife's 1986 Mazda 626 along his usual route, where
he would stop to collect lottery bets. He was seen later that day,
around 3:00 or 4:00 p.m., at the Farmacia San Antonio, which was a
regular stop on his route, by pharmacist Brenda García-Medina
("García"). The pharmacy is located in and adjacent to a section
of the town called El Salchichón, and connected to it by means of
a secluded road, which is surrounded by dense vegetation. Later,
Pérez's car was seen driving through El Salchichón, although
witness Jannette Ocasio-Ortiz ("Ocasio") testified that the car she
recognized as belonging to Pérez was not being operated in the
usual way. While Pérez would ordinarily drive very slowly and honk
his horn to allow those who wished to play the bolita to approach
him, on July 15, 2006 the car was driving very quickly. Ocasio
also testified that, although she could not see who was driving the
car, she noticed that the silhouette of the driver was too tall to
be Pérez.
2 These facts are drawn from the trial transcript, based on the findings of a reasonable jury. 3 The "bolita" is an underground lottery. Pérez was a "bolitero," or numbers runner.
-4- Later that evening, José Figueroa-Cartagena ("José") was
in his home when he received a telephone call from his sister,
Neliza. Neliza asked José to step outside, because defendant
Gabriel wanted to speak with him. José complied and spoke with
Gabriel, who offered José money to watch Pérez's car, with Pérez
inside. José agreed and allowed Alberto, who was driving Pérez's
Mazda, to park the car underneath a tent José used in his
automotive repair business. Pérez was in the back seat.
Alberto and Gabriel proceeded to search the car, and José
testified that he witnessed Alberto remove a revolver from the car
and place it on the roof. Though defendants did not appear to
remove anything else from the car, José testified that he overheard
them having a discussion about an ATM card they found on Pérez's
person. José also testified that Alberto bragged to him about the
speed of the car, and told him that they had taken it "policeman
style." When asked what that meant, José explained that he
understood this phrase to mean "that they stopped the car . . .
with the weapon, and they said, this is the police."
Alberto and Gabriel then left the area to attempt to
withdraw money using Pérez's ATM card, leaving José to watch over
Pérez, who remained in the back of his Mazda.
Alone with Pérez, José fielded several requests from his
captive which included rolling down the windows and getting him a
-5- drink of water. At this point, José noticed that Pérez was
handcuffed.
While guarding Pérez, José placed a call to defendants,
and spoke with Neliza, who assured him that they would return
soon.4 Shortly thereafter, Pérez attempted an escape, which
resulted in a struggle between him and José. In the course of the
struggle, Pérez shouted: "Help, they want to kill me." As José
fought with Pérez, Alberto, Gabriel, and Neliza arrived. Alberto
and Gabriel helped subdue Pérez. Hearing the ruckus, two
neighbors, Laura Ramos-Ortiz ("Ramos") and Celestina Montañez-
Borges, approached to inquire what was happening. José told them
not to worry and not to call the police. Then, Neliza again told
the two neighbors to leave. When they attempted to move in closer,
Neliza and Gabriel closed a gate that divided the properties to
prevent the neighbors' access.
After this incident, which occurred approximately fifteen
to twenty minutes after Pérez was left in José's custody, José
drove away to a gas station. There, he washed the mud off of his
car and drank a beer. Gabriel and Alberto arrived with Neliza soon
thereafter in two separate vehicles. Neliza exited her Grand
Vitara sport utility vehicle, to check on José. Alberto, Gabriel,
4 José testified that he intended to speak with Gabriel, but it was Neliza who answered the phone. It is unclear whether she answered Gabriel's phone, or if José accidentally called his sister's phone.
-6- and Pérez remained in Pérez's Mazda. José testified that he saw
that Gabriel had Pérez in a headlock. After briefly speaking with
José, Alberto, Gabriel and Neliza left the gas station in the
manner they arrived, and drove off in the same direction.
Later that night, as she was falling asleep, Pérez's
wife, Luz Rosario-García ("Rosario"), was startled by the sound of
intruders. She investigated and found a young man, whom she
described as tall and skinny, in her home. The man called Rosario
by name and told her to calm herself. He also stated that if she
shouted, she would get both herself and the man killed. Rosario
then encountered a second intruder, whom she described as tough-
looking, and wearing a mask and gloves. Rosario testified that she
observed that the second intruder had a firearm, though she did not
know what kind it was. The intruders asked for her ATM card, which
she procured for them. They also asked for her personal
identification number to activate the card, and when Rosario began
to recite the number, which was the same as her husband's, the
second intruder indicated that he already knew it. Rosario
testified that the intruders then asked for access to her husband's
moneybox, and when she told them that they would have to wait for
Pérez to return, they informed her that they had kidnaped him.
After the intruders left, Rosario found that they obtained entry to
her home by using her husband's keys, which they abandoned.
-7- The next day, July 16, 2006, José saw Neliza and Gabriel
again at his home. Gabriel stated that they "had to kill him,"
referring to Pérez, because "it got real difficult for us and he
struggled a lot." Gabriel explained that, although Alberto had a
gun, they chose to asphyxiate Pérez with duct tape, because they
did not want to get the gun dirty. José testified that both Neliza
and Gabriel instructed him to speak with the neighbors that
attempted to intervene on the previous day, and to secure their
silence, if necessary, with threats.
B. The Investigation
Pérez's body was found on July 17, 2006 in the backseat
of his Mazda in Caguas. The cause of death was mechanical
asphyxiation from the duct tape on his face. State agents
contacted José regarding the events outside his home. Although he
did not cooperate at first, he later agreed to speak candidly about
the incident.
Agents from the Federal Bureau of Investigation ("FBI")
presented Rosario with a spread of photographs, the third depicting
Gabriel. She stated that she recognized the man in the third photo
from her neighborhood. She also stated that he resembled the
unmasked intruder in her home, even though he appeared thinner in
person than in the photograph. Documenting her impressions for the
agents, she wrote and signed a note that stated: "With reference to
-8- number three, he looks alike, but I cannot identify whether this is
the young man who entered my home."5
FBI agents arrested Gabriel and interviewed him. When
asked about his relationship to Neliza, Gabriel stated that she was
his girlfriend. Agents questioned Gabriel about the murder of
Pérez, but Gabriel denied any knowledge or involvement. When asked
why he had been seen fighting with the victim, Gabriel stated that
Neliza's neighbors were trying to frame him. The agent pointed out
to Gabriel that he had not said where the fight took place.
Gabriel continued to deny everything.
On April 25, 2007, during his pre-trial incarceration,
Alberto spoke to his mother, Carmen Davis, over the telephone. The
conversation was recorded. During the course of this conversation,
Alberto told his mother that "Neliza is the one who is talking,"
and "That bitch is going to fuck us over." As to Gabriel, he
stated, presumably in reference to the police: "They have a picture
of him and everything. I saw it."
5 At trial, Rosario again was not able to make a definite identification, but stated that the photo resembled the unmasked intruder:
[Prosecution]: So what you're telling us is the young man who came into your house looked a lot like this young man in this photo . . . but he was skinnier; is that right?
[Rosario García]: Correcto, because when he turned the lighter [sic.] on, I tried to look at him to see who he was. Correcto.
-9- C. Procedural History
On April 25, 2007, a grand jury in Puerto Rico returned
a three-count indictment charging all three defendants with one
count each of conspiracy to commit carjacking, in violation of 18
U.S.C. § 371; carjacking, in violation of 18 U.S.C. §§ 2119(3) and
2; and the use and carrying of a firearm during a violent crime, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.
The case proceeded to a jury trial on March 5, 2008.
During the jury selection process, the district court judge asked
counsel whether there were any challenges to potential jurors for
cause. After two for-cause challenges, the judge asked whether
counsel wished to exercise any peremptory challenges. But, the
judge immediately assigned two jurors to act as alternates,
essentially combining the regular and peremptory challenges. It is
uncontroverted that this violated Rule 24 of the Federal Rules of
Criminal Procedure, which requires separate regular and peremptory
challenges for ordinary jurors and alternates. Fed. R. Crim. P.
24(c)(4)(A).6
6 Neither Alberto nor Gabriel appeal on this issue, but we note that this issue has been before us on other occasions. See, e.g., United States v. González-Meléndez, 594 F.3d 28, 33-34 (1st Cir. 2010). While the Supreme Court "has indicated that mistaken denials of peremptory challenges do not ordinarily warrant automatic reversal," id. (quoting Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009)), district court judges should refrain from committing this error in the future.
-10- At trial, a recording of Alberto's telephone conversation
with his mother was introduced over defendants' objections, as was
Gabriel's statement to agents which referred to Neliza. The
judge's instructions to the jury did not limit either the relevance
of Alberto's recorded conversation or Gabriel's statements to
federal agents.
The jury returned a guilty verdict on all counts against
Gabriel and Alberto. They were sentenced to 60 months under the
conspiracy count to be served concurrently with life imprisonment
as to the carjacking count, and an 84 month consecutive term for
the firearms count. Gabriel and Alberto timely appealed their
convictions on grounds of insufficiency of the evidence, certain
evidentiary rulings made by the district judge, a violation of
Fed. R. Crim. P. 24(c)(4)(A), and statements made by the prosecutor
during closing argument.7
II. Discussion
A. Sufficiency of the Evidence
Alberto and Gabriel deny that the government presented
sufficient evidence against them to find each element of the
offenses beyond a reasonable doubt. We thus review de novo
"whether, taking the evidence in the light most favorable to the
7 While only Alberto initially appealed his sentence based on the district court's misapplication of the sentencing guidelines, we allowed Gabriel to adopt the argument, as the mistakes were concurrent.
-11- jury verdict, a reasonable factfinder could have found the
defendant[s] guilty beyond a reasonable doubt." United States v.
Rodríguez-Berríos, 573 F.3d 55, 65-66 (1st Cir. 2009). We do not
"weigh evidence or make credibility judgments," but rather "must
uphold any verdict that is supported by a plausible rendition of
the record." United States v. Ofray-Campos, 534 F.3d 1, 31-32 (1st
Cir. 2008)(citation omitted).
1. Conspiracy
Alberto and Gabriel were charged under 18 U.S.C. § 371.8
To support a conviction under a conspiracy charge, the government
must show that a defendant had both the intent to agree to commit
a crime, and the intent that the crime be completed. United States
v. Escobar de Jesús, 187 F.3d 148, 175 (1st Cir. 1999). "A
sustainable conspiracy conviction requires direct or circumstantial
evidence which establishes beyond a reasonable doubt that the
defendant and one or more coconspirators intended to agree and
. . . to commit the substantive criminal offense which was the
8 18 U.S.C. § 371 reads:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
-12- object of their unlawful agreement." United States v. Tejeda, 974
F.2d 210, 212 (1st Cir. 1992) (internal quotation marks omitted).
"The prosecution need only show knowledge of the basic agreement,
with an intent to commit the underlying substantive offense. The
requisite knowledge and intent can be proven through circumstantial
evidence, including inferences from acts committed by the defendant
that furthered the conspiracy's purposes." United States v.
García-Pastrana, 584 F.3d 351, 377 (1st Cir. 2009) (internal
quotation marks and alterations omitted). Defendants argue that
the government presented no evidence of an agreement or specific
plan to carjack the victim, and thus cannot maintain a conspiracy
conviction. We do not agree.
The evidence presented at trial shows a well-orchestrated
plot to carjack and kidnap the victim, which bespeaks a prior
agreement. First, there was testimony that Alberto and Gabriel
lived two houses away from Pérez, a fact that would allow the jury
to reasonably infer that they were aware of Pérez's dealings and
movements. There was also testimony that the last place Pérez
stopped his car before the carjacking was a pharmacy on a secluded
country road with lots of surrounding cover and vegetation.
Moreover, the carjacking occurred on a bolita day, when one
familiar with Pérez's dealings could infer that he was likely to
have significant amounts of cash in the car. Finally, the presence
of the revolver and the handcuffs used to subdue Pérez could also
-13- reasonably lead to an inference of defendants' forethought in
executing their heist. See United States v. Pérez-González, 445
F.3d 39, 49 (1st Cir. 2006) (holding that jury could reasonably
infer existence of conspiracy to break into and vandalize a naval
base when defendants brought sledgehammers and wire cutters to
nearby celebration and acted in a coordinated fashion). Therefore,
since the carjacking seems to have been perpetrated at a
specifically opportune time, in a conveniently secluded place,
using the tools necessary to pull off the operation, a reasonable
jury would have legally sufficient evidence to find that defendants
Alberto and Gabriel planned the crime in advance and possessed the
requisite intent to support a conviction for conspiracy.
2. Carjacking9
The elements of a carjacking resulting in death are (1)
taking or attempted taking from the person or presence of another;
(2) a motor vehicle transported, shipped, or received in interstate
or foreign commerce; (3) through the use of force, violence, or by
intimidation; (4) with the intent to cause death or serious bodily
harm; (5) that results in death. See 18 U.S.C. § 2119(3); United
9 Alberto also argues in his brief that the government did not prove all of the elements of the firearms charge beyond a reasonable doubt. See 18 U.S.C. § 924(c)(1)(A)(ii). Because there has been lack of even minimal briefing on appeal, we find that this argument has been waived for lack of appropriate argumentation. See United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) ("We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.").
-14- States v. García-Álvarez, 541 F.3d 8, 16 (1st Cir. 2008).
Defendants argue that the government also failed to show any of
these elements, save the second, beyond a reasonable doubt. Again,
we disagree.
To take a motor vehicle from the person or presence of
another requires, "at a minimum, proximity to the vehicle and the
ability to influence the space encompassing the vehicle . . . ."
United States v. Savarese, 385 F.3d 15, 19 (1st Cir. 2004). "In
the carjacking context, courts have required the victim to have
both a degree of physical proximity to the vehicle and an ability
to control or immediately obtain access to the vehicle." Id. at 20
(emphasis omitted). This is not to say, however, that the
government must prove that the victim was inside of the vehicle.
In Savarese, we recognized with approval that "other circuits have
held that the presence requirement of the carjacking statute was
satisfied when the victim or victims were inside a building and the
stolen vehicle was parked outside the building." Id. Defendants
contend that there is no evidence on the record that shows they
took the car from the person or presence of Pérez. José's
testimony that Alberto characterized the taking as having been
accomplished "policeman style," defendants argue, was not
sufficient, as it required the jury to guess the phrase's meaning
without further development by the government. However, since
there was evidence presented showing that Pérez had been driving
-15- his usual bolita route in the morning and that later in the
afternoon the car was driven in an unusual manner by a person other
than Pérez, the jury was entitled to conclude that defendants
abducted Pérez while he was driving his bolita route. Given this
evidence as well as the testimony that Pérez was transported in his
vehicle to José's house, a reasonable jury could have also
concluded that Pérez was either in his car at the time of the
carjacking or sufficiently nearby. In either case, the government
met its burden of proof beyond a reasonable doubt as to this
element of § 2119(3).
The second element of the statute, requiring that the
vehicle to be taken "by force and violence or by intimidation,"
does not present as great an evidentiary barrier. 18 U.S.C.
§ 2119. Indeed, the Supreme Court has indicated that an "empty
threat, or intimidating bluff" is enough. Holloway v. United
States, 526 U.S. 1, 11 (1999). In arguing that the government
presented insufficient proof of this element, defendants argue
along similar lines as above -- namely, that testimony that the car
was obtained "policeman style" is too vague to support a jury
finding on the matter. We disagree.
José explained that he understood the phrase "policeman
style" to mean that "they stopped the car . . . with the weapon,
and they said, this is the police." This was a reasonable
interpretation of the phrase which the jury was entitled to credit.
-16- Having further evidence of the presence of a handgun from José's
testimony, the jury could have reasonably concluded that the
carjacking was performed at gunpoint. Finally, there was also
evidence presented that Pérez was forcibly restrained during the
incident, given the fact that he was handcuffed in the back seat of
his own vehicle. A jury was entitled to conclude that Pérez was
abducted through the "use of force, violence, or intimidation."
The last disputed element of the carjacking offense is
the intent element, which requires that a vehicle be taken with
"intent to cause death or serious bodily harm." 18 U.S.C. § 2119.
It is well-settled that the statute does not refer to a carjacking
which merely happens to result in death. United States v.
Matos-Quiñones, 456 F.3d 14, 17 (1st Cir. 2006) ("[T]his statute
is not a felony murder analog. Even if death results, the statute
requires intent to cause death or serious bodily harm.") (internal
quotation marks omitted). Rather, the statute requires that the
defendant possessed either actual or conditional intent to cause
death or serious bodily harm to the carjacking victim. In
Holloway, the Supreme Court explained that "[t]he intent
requirement of sec. 2119 is satisfied when the Government proves
that at the moment the defendant demanded or took control over the
driver's automobile the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the car (or,
alternatively, if unnecessary to steal the car)." 526 U.S. at 12.
-17- Even if the defendant did not intend to kill the driver, the intent
element is satisfied if the defendant was willing to kill the
driver to effect the theft of the car. The parenthetical at the
end of the quotation implies that the Court saw a distinction
between killing for its own sake and willingness to kill to effect
the theft, and that it deemed both circumstances as meeting the
intent standard of § 2119.
This actual or conditional intent must be formed "at the
moment the defendant demanded or took control over the driver's
automobile . . . ." Id.; see also United States v. Evans-García,
322 F.3d 110, 114 (1st Cir. 2003); United States v. Rosario-Díaz,
202 F.3d 54, 63 (1st Cir. 2000) ("[T]he mental state required by
the statute . . . is measured at the moment that the defendant
demands or takes control of the vehicle.").
Defendants argue that the government presented no
evidence to show that they had formed either an actual or
conditional intent to kill or seriously injure Pérez at the moment
the carjacking occurred. The only evidence on this point, they
contend, points to precisely the opposite conclusion -- that
defendants meant to rob Pérez and ended up killing him after the
carjacking, when he became difficult.10
10 José testified that Gabriel told him, "We had to kill him because it got real difficult for us and he struggled a lot."
-18- We considered very similar facts in Matos-Quiñones. In
that case, the defendants took the victim's car keys and forced
him, at gunpoint, to lie down in the rear of the vehicle, while
they drove away.11 Later, after discovering that the victim was a
sailor, defendants decided to kill him. Matos-Quiñones, 456 F.3d
at 16. They stopped in a secluded area, then, after a struggle
prompted by an escape attempt, defendants shot the victim in the
back of the head, killing him. Id. at 16-17. Thus, in
Matos-Quiñones, we were faced with a situation in which a carjacker
stole a car, held the owner hostage, and later killed him. These
circumstances raised the question of whether the moment of the
carjacking, at which point the actual or conditional intent must
manifest, could be extended from the initial taking to a later
period in time by virtue of holding the victim hostage. We did not
decide this issue in Matos-Quiñones, however, because the
defendants pleaded guilty. Likewise, we do not see the need to
decide it presently, as we believe that in this case a reasonable
jury had enough evidence to conclude that defendants possessed
either actual or conditional intent to cause the death of Pérez, or
to inflict upon him serious bodily harm, at the moment they took
his vehicle.
11 This seems to correlate with the "policeman style" abduction method used by Alberto and Gabriel.
-19- The evidence on the record, taken as a whole, supports
the inference that defendants intended or were willing to seriously
injure or kill Pérez when they committed the carjacking. For one,
there was evidence presented that defendants used a handgun to
abduct Pérez. It is true that this fact alone would not support a
finding of actual or conditional intent. See Holloway, 526 U.S. at
11-12 n.13 ("[W]e have found no case of a conviction of assault
with intent to kill or murder, upon proof only of the levelling of
a gun or pistol.") (internal quotations omitted). That is not,
however, the full extent of the evidence presented to the jury on
this issue. There was also testimony that could lead a reasonable
jury to conclude that Alberto and Gabriel abducted Pérez while he
was in his own vehicle. Additionally, there was testimony that
Pérez was restrained with handcuffs when he arrived at José's
house. Finally, Pérez's cries for help during his attempted
escape12 lead to the inference that he felt his life was threatened.
This conclusion is reasonable, given defendants' displays of
violence during the ordeal, and their ultimate act of asphyxiating
Pérez.13 Taken in conjunction, and viewing ambiguities in the light
12 José's neighbor Ramos heard Pérez shout "Help, they want to kill me," as he struggled to escape. 13 We do not believe, and, as discussed above, our prior cases do not support, that the act of killing alone satisfies the intent element of § 2119. Common sense, however, dictates that the final act, at the very least, evidences the intent. Cf. United States v. Lebrón-Cepeda, 324 F.3d 52, 64 (1st Cir. 2003) (per curiam) (Howard, J., concurring) ("In my view, we could have affirmed
-20- most favorable to the verdict, this evidence could plausibly lead
a reasonable jury to conclude that Alberto and Gabriel were at
least willing to seriously injure, if not kill Pérez, at the moment
of the carjacking given the evidence that defendants used a
revolver, put Pérez in handcuffs, and placed him in his own car,
were willing to and did use violence to prevent his escape, and
then did actually kill him after an extended period of holding him
hostage. Cf. United States v. Lebrón-Cepeda, 324 F.3d 52, 57 (1st
Cir. 2003) (per curiam) (holding that conditional intent to kill
could be inferred from fact that defendant placed a gun against the
victim's head and threatened him, even though the actual killing
occurred at a later time). We therefore hold that sufficient
evidence was presented to allow a reasonable jury to find that the
government satisfied its burden of proving the intent element of
§ 2119(3).
B. Admission of Alberto's Statements
Gabriel appeals the district court's decision to allow
introduction of Alberto's recorded statements from his telephone
call with his mother. Admission of this evidence, he argues,
violated his rights under the Confrontation Clause of the Sixth
Amendment, as outlined by the Supreme Court precedents of Crawford
[defendant's] conviction simply because he intentionally shot [the victim] in the head at close range during the actus reus, thus manifesting an intention to seriously harm or kill him.").
-21- v. Washington, 541 U.S. 36 (2004), and Bruton v. United States,
391 U.S. 123 (1968).
Gabriel did not properly preserve his Crawford objection,
so our review is for plain error only. See United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Since Gabriel did
preserve his Bruton objection at trial, we review the district
court's determination under Bruton de novo. United States v. Vega-
Molina, 407 F.3d 511, 519 (1st Cir. 2005).
The Supreme Court's decision in Crawford stands for the
proposition that "the Confrontation Clause bars admission of
testimonial hearsay in a criminal case unless the declarant is
unavailable and the accused has had a prior opportunity for
cross-examination." United States v. Earle, 488 F.3d 537, 542 (1st
Cir. 2007) (citing Crawford, 541 U.S. at 68). The parties agree
that Alberto was unavailable for cross-examination, as he invoked
his right not to testify. Thus, admissibility of Alberto's
conversation would violate defendant Gabriel's Confrontation Clause
rights unless the statements were either non-testimonial or not
hearsay. Since Gabriel does not challenge whether or not Alberto's
statements were hearsay, we turn to the question of whether they
were testimonial.14
14 Gabriel does not challenge whether or not Alberto's statements were hearsay. Prior to the Supreme Court ruling in Davis v. Washington, 547 U.S. 813 (2006), courts employed an additional line of Confrontation Clause analysis for non-testimonial hearsay. See Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) ("Crawford draws
-22- The Supreme Court provides the following examples to
guide a court's determination of whether an out-of-court statement
is testimonial: Testimonial statements take the form of 1) "ex
parte in-court testimony or its functional equivalent;" 2)
"extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions;" and 3) "statements that were made under circumstances
which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial."
Crawford, 541 U.S. at 51-52 (internal quotation marks omitted).
Furthermore, this Circuit has stated that, in determining whether
a statement is testimonial, a court should consider whether "an
objectively reasonable person in [the declarant's] shoes would
understand that the statement would be used in prosecuting [the
a distinction between testimonial and non-testimonial hearsay and applies only to the former category of statements."). Thus, when it was handed down, Crawford did not change the test for non- testimonial hearsay, which could only be admitted based on a "'firmly rooted hearsay exception' or [if it bore] 'particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 60 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). In other words, until Davis, Roberts remained the controlling precedent for judging whether non-testimonial hearsay violated the Confrontation Clause. After Davis, however, non-testimonial hearsay no longer implicates the Confrontation Clause at all. See Earle, 488 F.3d at 542; see also United States v. Rodríguez-Berríos, 573 F.3d 55, 61 n.4 (1st Cir. 2009). So, a finding that Alberto's conversation was non- testimonial should end the matter, and there is no need to determine whether or not the non-testimonial hearsay qualifies as a firmly rooted exception or if it bears the particularized guarantees of trustworthiness.
-23- defendant] at trial." United States v. Maher, 454 F.3d 13, 21 (1st
Cir. 2006).
Gabriel notes that Alberto was repeatedly warned that his
telephone conversations were recorded. Furthermore, he was
actually aware of this fact, and even stated in that conversation
that he could not say much over the telephone. Thus, Gabriel
argues, a reasonable person in Alberto's shoes would know that the
conversation was being recorded, and would thus expect that
anything he said could be used to prosecute him, making the
statements testimonial pursuant to Maher. See id. We believe that
Gabriel's analysis misses the mark, and that Alberto's statements
were not made under circumstances that render them testimonial.
Looking at the examples given by the Supreme Court in
Crawford, it is plain that Alberto's statements to his mother were
not "solemn declarations made to government officials in
circumstances that resemble the repudiated civil-law mode of
interrogation," and thus cannot be treated as testimonial. United
States v. Brito, 427 F.3d 53, 68 (1st Cir. 2005) (Howard, J.,
concurring) (quoting Crawford, 541 U.S. at 51). He did not make
the statements to a police officer, during the course of an
interrogation, or in a structured setting designed to elicit
responses that intended to be used to prosecute him. Rather,
Alberto had a conversation with a close family member without any
intention of assisting in his own prosecution -- in fact, quite the
-24- opposite. Other courts have found accordingly in similar
circumstances. See, e.g., United States v. Manfre, 368 F.3d 832,
838 n.1 (8th Cir. 2004) ("[Declarant's] comments were made to loved
ones or acquaintances and are not the kind of memorialized,
judicial-process-created evidence of which Crawford speaks.");
Saechao v. Oregon, 249 F. App'x 678 (9th Cir. 2007) (unpublished
opinion) (holding that jailhouse conversation over the phone with
an acquaintance was not testimonial, as declarant did not have the
purpose of supplying prosecution with evidence).
Gabriel also challenges the admitted statements under
Bruton. In Bruton, the Supreme Court held that, in a joint trial,
a non-testifying defendant's confession that was "powerfully
incriminating" against a co-defendant could not be admitted, as any
limiting instruction would be inadequate to relieve the
Confrontation Clause problems. 391 U.S. at 135; Furr v. Brady, 440
F.3d 34, 37 (1st Cir. 2006). However, as the companion opinion
explains, the Bruton rule does not apply to non-testimonial hearsay
statements. See Figueroa Cartagena, No. 08-2110. Since we have
determined that the recorded conversation was non-testimonial,
Bruton is not implicated.
We therefore conclude that the recorded conversation was
properly admitted.
-25- C. Prosecutor's Statements During Closing Arguments
Defendant Gabriel enumerates a litany of statements made
by the prosecutor during her closing arguments that he contends
warrant a new trial because they unfairly prejudiced the jury, and
were not overcome by instructions from the judge. He also argues
that the government's case lacked the strength to overcome the
prejudice caused by the prosecutor's individual and combined
closing argument errors. Since Gabriel did not object to these
statements during trial, our review is for plain error only.
United States v. Henderson, 320 F.3d 92, 105 (1st Cir. 2003).
"[Plain] error will not be recognized unless it caused a
miscarriage of justice or seriously undermined the integrity or
public reputation of judicial proceedings." Id. (internal
quotation marks omitted). A prosecutor's remarks necessitate
reversal of the verdict "only if they so poisoned the well that the
trial's outcome was likely affected." Id. at 107 (internal
quotation marks omitted).
"Even if the remarks are improper, we affirm unless they
prejudiced the defendant." United States v. García-Pastrana, 584
F.3d 351, 389 (1st Cir. 2009). We look to the following factors in
considering prejudice: "(1) the severity of the prosecutory's
misconduct, including whether it was deliberate or accidental;" (2)
the context in which the misconduct occurred; (3) whether the judge
gave curative instructions and the likely effect of such
-26- instructions; and (4) the strength of the evidence against the
defendants." Id. (quoting United States v. Nelson-Rodríguez, 319
F.3d 12, 38 (1st Cir. 2003).
First, Gabriel challenges two of the prosecutor's
statements which he contends reflected the prosecutor's own
opinions regarding her witness's credibility. We have held that
"[a] prosecutor improperly vouches for a witness when she . . .
impart[s] her personal belief in a witness's veracity or impli[es]
that the jury should credit the prosecution's evidence simply
because the government can be trusted." United States v.
Pérez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003); United States v.
Flores-De-Jesús, 569 F.3d 8, 18 (1st Cir. 2009).
Gabriel's challenge under this rubric is to the statement
made by the prosecutor that "José Figueroa-Cartagena comes into
court and tells you under oath." We dispose of this challenge
easily, as the statements that José testified under oath merely
stated a fact and were neither a personal assurance, nor invoked
the prestige of the government. See Pérez-Ruiz, 353 F.3d at 10
(finding no improper vouching since prosecutor "neither expressed
her personal opinion regarding the veracity of any witness nor
implied that [the witness] should be trusted because of some
connection to the government"). We thus do not believe the
district court committed plain error in allowing the jury to hear
this statement.
-27- The next statements that Gabriel challenges referred to
another of the prosecutor's witnesses and the victim's wife,
Rosario. Gabriel quotes statements made by the prosecutor at
closing argument and alleges that they impermissibly bolstered
Rosario's credibility. We reproduce the challenged portion of the
closing argument below.15
And she made a mistake referencing the photo spreads, because she had two photo spreads before her at the time. But she clarified that, and I think her testimony was very clear that when she wrote these words, she's referring to the photograph of Félix Gabriel Castro-Davis. "It looks familiar to me. To me, it is a young man who entered my house. I'm not sure, but the young man at that time was thinner. I've seen this kid in barrio San Antonio in Caguas." Compare that photograph of Félix Gabriel Castro-Davis to the photograph of Félix Gabriel Castro-Davis on August 10, 2006. What would that be? Like two to three -- three to four weeks later. Here is Félix Gabriel on the photo spread that [Rosario] saw, and here is the photograph of Félix Gabriel on August 10th, 2006. It seems to me, and I submit to you, that [Rosario] is right on the money. Same guy, just thinner.
We agree with Gabriel that the prosecutor's statements went too far
in this case. The phrases "I think" and "it seems to me," and the
statement that the government witness was "right on the money" were
improper. But see Henderson, 320 F.3d at 106 (noting that
"although it is the jury's job to draw the inferences, there is
15 Gabriel only challenged the italicized portions.
-28- nothing improper in the Government's suggesting which inferences
should be drawn") (quoting United States v. Mount, 896 F.2d 612,
625 (1st Cir. 1990). Nevertheless, given the weight of the
evidence against Gabriel, we find that these statements were not
sufficiently prejudicial as to constitute reversible error.
Gabriel also challenges the following statement made by
the prosecutor at closing: "What an incredible, terrible
coincidence for the defendant, that [Rosario's] physical
description of him fits him perfectly." Rosario testified that the
first intruder in her home was tall and skinny and stated that a
photograph of Gabriel "looked a lot like that individual" who broke
into her home, though she could not certainly state it was the
intruder. There is no evidence on the record as to Gabriel's
appearance from which to conclude whether "tall and skinny" fits
well as a description of defendant. However, we do not find this
statement to be significantly prejudicial given Rosario's testimony
that Gabriel's photo "looked a lot like that individual" who
invaded her home.
Gabriel next argues that the prosecutor's statement that
José did not know the victim was a bolitero until defendants told
him so improperly commented on the character of José by implying
that he was not aware of the victim's illegal activities, as he was
of good character and was not familiar with the criminal world. As
-29- above, we do not believe this is the sort of credibility bolstering
that amounts to plain error and would warrant a new trial.
Gabriel also challenges a statement by the prosecutor
that Pérez "knew the streets. This is not the first time he
encountered people like [Alberto] and [Gabriel]." Gabriel alleges
that this statement portrayed the defendants as criminals and
implied they were involved in illegal gambling. While we will not
condone prosecutor statements that malign the character of
defendants, without evidentiary support or in ways not related to
the charges, we do not believe that this statement "so poisoned the
well" that a new trial is required. This statement was also
arguably accurate. There was testimony presented at trial that
Pérez once lived two houses away from Gabriel and Alberto, and
therefore literally knew each other from the streets. José also
testified that the day after the murder, Gabriel told him that
Pérez was a numbers runner.
Gabriel also argues that the prosecutor's statement that
"José . . . said to you that he saw Félix Gabriel Castro-Davis
carrying a revolver" was improper, because José only testified that
he "noticed that [Alberto] had pulled out a weapon and placed it on
top of the car on the right side." While it was improper for the
prosecutor to confuse Félix Alberto Castro-Davis with Félix Gabriel
Castro-Davis, we do not think this lone statement amounted to clear
error.
-30- Gabriel contends that the next error occurred when the
prosecutor stated that there was "not a single shred of evidence"
and "not a single reason" that José would lie, and also stated that
defendants did not attempt to cross-examine José. This statement
was not improper. The prosecutor was commenting on the lack of
impeachment evidence against José, not giving his opinion as to
José's credibility.
Gabriel finally challenges the prosecutor's last
statement to the jury: "And you hold them accountable for what they
did, all three of them. You hold them accountable." We agree with
the government that this amounts to a request from the prosecutor
to render a guilty verdict. The government points us to United
States v. Flaherty, where we stated that "[t]he prosecutor's
statement that the Government would ask the jury to return guilty
verdicts does not bring the Government's credibility to bear on the
case." 668 F.2d 566, 597 (1st Cir. 1981). However, after
Flaherty, the Supreme Court decided United States v. Young, and
held that a prosecutor was "in error to try to exhort the jury to
'do its job' [because] that kind of pressure, whether by the
prosecutor or defense counsel, has no place in the administration
of criminal justice." 470 U.S. 1, 18 (1985); see also United
States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir. 1986) ("There
should be no suggestion that a jury has a duty to decide one way or
the other; such an appeal is designed to stir passion and can only
-31- distract a jury from its actual duty: impartiality."). We thus
find that this statement was improper. However, given the weight
of the evidence presented against Gabriel and the brevity of the
statement, we find that it was not sufficiently prejudicial as to
warrant a new trial.
Even though some of the prosecutor's remarks were
improper, we do not think they so poisoned the well as to require
a new trial. United States v. Vázquez-Botet, 532 F.3d 37, 56 (1st
Cir. 2008). We take note, and register our concern, with the fact
that there was no contemporaneous objection or request for curative
instructions, thus depriving the district judge of the opportunity
to provide special or additional instructions with regards to the
closing statements, and consequently, failing to provide defendants
of the type of diligent defense to which they are entitled.
However, the court's general closing instructions did properly
counsel the jury regarding what constituted evidence and the fact
that they were the sole judges of credibility. The instructions
specifically reminded jurors they were the "sole judges of the
credibility of the witnesses" and that "arguments and statements of
counsel are not evidence." Given the evidence presented at trial
from multiple witnesses, any potentially harmful effect from the
prosecutor's closing was safeguarded by the district court's final
jury instructions. See United States v. Mejía-Lozano, 829 F.2d
-32- 268, 274 (1st Cir. 1987) (finding that the district judge's
standard instruction was sufficient to overcome any prejudice).
D. Sentencing Errors
Alberto and Gabriel argue that the district court erred
when it sentenced them to a mandatory term of life imprisonment for
a murder that they were neither charged with nor convicted of
committing and seek that their sentence be vacated and remanded.16
Because both Alberto and Gabriel failed to object during the
sentencing hearing to the district court's misstatement regarding
the statutory sentence for carjacking, our review is for plain
error. United States v. González-Castillo, 562 F.3d 80, 82 (1st
Cir. 2009). Under plain error review, for this Court to correct an
error not objected to in the district court, "there must be an
'error' that is 'plain' and that 'affects substantial rights.'"
United States v. Olano, 507 U.S. 725, 732 (1993) (alteration
omitted). If those three factors are all met, this Court has
discretion to correct the error if it "seriously affects the
fairness, integrity, or public reputation of judicial proceedings."
16 Gabriel failed to make this argument in his brief, which would normally mean it would be waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). On October 28, 2009, after oral argument had concluded, Gabriel filed a motion with this court requesting to join and adopt Alberto's argument that the district court erred in sentencing the defendant to a mandatory life term for murder where he was convicted of a carjacking resulting in death. Because we find that Alberto and Gabriel are in the same legal and factual position, and that the interests of justice compel it, we grant Gabriel's motion.
-33- Id. at 736 (internal quotation marks and alterations omitted). We
find that all four requirements are met in this case.
The government concedes that the district court committed
plain error during the sentencing hearing and agrees that this
error warrants vacating Alberto's -- and by adoption, Gabriel's --
sentence and remanding the case to the district court for
resentencing. The district court referred to the defendants' crime
of conviction as "first degree murder in the context of
carjacking." The district court compounded its mistake by also
stating on more than one occasion that the statutory penalty for
the crime was life imprisonment. This was incorrect since the
statutory penalty for carjacking resulting in death is "any number
of years up to life." 18 U.S.C. § 2119(3).
Defendants also argue, and the government does not
dispute, that this error affected their substantial rights. It
appears that because the district court thought that the statutory
sentence was life imprisonment, it felt bound to impose a life
sentence. We agree that this affected the outcome of the
proceedings below, and additionally, that the district court's
error threatened to compromise the fairness, integrity, and public
reputation of the proceedings. We thus hold that Alberto and
Gabriel's sentence should be vacated and remanded for resentencing.
-34- III. Conclusion
For the reasons discussed, we affirm the judgment against
Félix Alberto Castro-Davis and Félix Gabriel Castro-Davis's but
reverse and remand their sentences.
Affirmed, Reversed and Remanded.
-35-