United States v. Lebron-Gonzalez

816 F.2d 823
CourtCourt of Appeals for the First Circuit
DecidedApril 24, 1987
DocketNos. 85-1681 to 85-1684
StatusPublished
Cited by50 cases

This text of 816 F.2d 823 (United States v. Lebron-Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir. 1987).

Opinion

COFFIN, Circuit Judge.

These are appeals by four co-defendants, Raymond Catala Fonfrias (Catala), Ernesto Gil Arzola Martinez (Arzola), Jose Luis Lebron-Gonzalez (Lebrón), and Eduardo Rodriguez Parrilla (Rodriguez), from judgments of conviction, following jury trials,1 arising out of the murder of one Griselle Gonzalez-Ortiz (Jessica). The federal statutes found to have been violated in all cases were the criminal civil rights conspiracy and substantive offense statutes, 18 U.S.C. §§ 241 and 242.2 Lebrón, Catala and Arzola were each sentenced to concurrent life sentences, Rodriguez to concurrent terms of imprisonment of fifty years. After considering a large number of asserted errors, mainly having to do with the conduct of the trial, we affirm.

[826]*826The scenario portrayed is one of unrelieved venality. We need only sketch the highlights here, since the legal issues chiefly concern very specific rulings and their own special factual background. Appellant Lebrón had been charged with the murder of one Rivera de Leon in March of 1979. Jessica had witnessed the shooting, had testified at the preliminary hearing, and in late May was attending court, waiting to testify as the only witness for the prosecution. Meanwhile, after Jessica's testimony at the preliminary hearing, Lebrón and his attorney Catala hired for $15,000 the services of an investigator in the Police Department, Arzola, and his superior, the Director of the Property Crime Section, Ortiz-Ortiz (Ortiz), to prevent Jessica from testifying. Rodriguez was an associate of Lebrón. Ortiz subsequently pleaded guilty and cooperated with the authorities, his testimony being the principal source of the events here revealed.

Conversations subsequently took place among Ortiz and all the appellants; the means of preventing the testimony soon became the killing of Jessica; and partial payments of some $4,000 were made to the two police officers. On May 29,1980, Ortiz had Jessica brought to his office at police headquarters and then to the courthouse. After the court session, Ortiz, purporting to drive Jessica to her home in Arecibo, rendezvoused with Arzola, discussed, in Jessica’s absence, the weapon to be used, proceeded to a number of bars, and then drove on a dark road near an abandoned sugar plantation. Arzola, sitting in the left back seat, then shot Jessica, who was sitting in the front passenger’s seat. They left the body under a tree. Two days later, Ortiz and all appellants met again, where Ortiz and Arzola were congratulated by the others and sought to up their ante to $22,-000.

The four appellants have advanced some fifteen alleged reversible errors. We deem roughly half of these sufficiently substantial to merit discussion in some detail. The remainder we shall dispose of more summarily. We begin with the former group— the challenges of all appellants to the admission into evidence of á birth certificate, purportedly that of the victim; to the admission of certain testimony of an expert witness; and to several aspects of the court’s instructions dealing with elements of the crimes covered by 18 U.S.C. §§ 241 and 242. All of our discussion, of course, deals with the evidence and inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Admission of the birth certificate; sufficiency of proof of United States citizenship

Successful prosecution of a violation of 18 U.S.C. § 241 requires adequate proof that the victim was a citizen of the United States. In this case a bizarre turn of events converted what should have been the simplest of tasks into an issue provoking considerable argument by all appellants. The government’s plan was simply to put Jessica’s foster mother, Tomaso Borrero Ortiz, on the stand to testify that Jessica had been born in Puerto Rico. This was not to be. The foster mother had assiduously, on her own volition, attended court every day during the selection of the jury. During the voir dire of juror number 7, she broke into sobs and was removed from the courtroom. Shortly after, her voice could be heard from a nearby hall crying “she is dead” several times. A motion for mistrial was made and denied. An impasse developed when the defense refused to stipulate that the foster mother would have testified to the Puerto Rican birth (and, thus, citizenship) of Jessica and when the court, concerned about the prejudicial impact of any in-court emotional display, refused to allow the foster mother to testify.

The government then proceeded to offer a document purporting to be a certified copy of Jessica’s birth certificate, bearing, however, the name, “Grisette Ivette Gonzalez” (not Griselle Gonzalez-Ortiz). The record as to the grounds of objection is barren. All that it reveals is that the court referred to some apparently unrecorded previous discussion and assured counsel that their objection was noted. Nor have [827]*827appellants made any effort either to have the record corrected to reflect what was not transcribed or to tell us what grounds, if any, were asserted. We note that the burden of seeing that a record is adequate to present issues on appeal rests on appellants. Muniz Ramirez v. Puerto Rico Fire Services, 757 F.2d 1357, 1358 (1st Cir.1985); Loc.R. 11.

The court then announced that it was taking judicial notice based on the birth certificate that Jessica was a U.S. citizen.3 Such action, however, would not seem to fall within the contours of Fed.R.Evid. 201 (fact not subject to reasonable dispute in that it is generally known in the district or capable of determination by resort to unquestionable sources). No objections were noted to this ruling.

On appeal two grounds are asserted: the lack of any proof that the “Grisette” on the certificate was the same person as “Griselle” the victim; and the failure of the certificate, having been belatedly (more than 10 days after birth) executed, to meet a number of requirements of P.R. Laws Ann. tit. 24, § 1131 — principally a sworn statement from a parent and information about the mother — which are prerequisite to a copy from the record of the Vital Statistics Registry being received as prima facie evidence.

In sum, we have a document admitted over unspecified objection, the court improperly basing the ruling on judicial notice, this ruling not being objected to, with various other possible grounds never having been mentioned by the parties or the court. If the admission of the certificate is to be judged by plain error, we see no possibility of defendants’ substantial rights being affected.

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Bluebook (online)
816 F.2d 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lebron-gonzalez-ca1-1987.