United States v. Rodriguez

457 F.3d 109, 2006 U.S. App. LEXIS 19433, 2006 WL 2143126
CourtCourt of Appeals for the First Circuit
DecidedAugust 2, 2006
DocketNo. 05-1498
StatusPublished
Cited by21 cases

This text of 457 F.3d 109 (United States v. Rodriguez) 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. Rodriguez, 457 F.3d 109, 2006 U.S. App. LEXIS 19433, 2006 WL 2143126 (1st Cir. 2006).

Opinion

CAMPBELL, Senior Circuit Judge.

Alberto Rodriguez appeals from his conviction in the United States District Court for the District of Rhode Island for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Rodriguez raises four issues: (1) whether the district court properly denied his motion to dismiss under the Speedy Trial Act (“STA” or “the Act”); (2) whether Rodriguez suffered from ineffective assistance of counsel when his trial attorney did not cross-examine a government witness; (3) whether the district court properly denied Rodriguez’s motions for acquittal or for a new trial on the basis of insufficient evidence; and (4) whether the district court abused its discretion in refusing the jury’s request for trial transcripts. We affirm.

Background and Facts

On November 28, 2003, in the early morning, police officers in the city of Providence, Rhode Island, were following a red car driven by a female relative of Rodriguez. He was sitting in the passenger’s seat, and two women were sitting in the backseat. When the car twice failed to signal when turning, one police cruiser turned on its lights and sirens and tried to pull the car over. The car sped ahead, and after a short chase, a second cruiser blocked it by driving in front of it. Before the car came to a full stop, Rodriguez jumped out and began to ran. Officer Martin Hames saw that Rodriguez was wearing yellow sunglasses pushed up on his forehead. Officer Scott Petrocchi chased Rodriguez for about 30 seconds through several backyards, staying within ten feet and never losing sight of him. Early in the chase, Petrocchi noticed that Rodriguez was carrying a black gun, and, using a radio strapped to his shoulder, he radioed his fellow officers, warning that “it looks like” the suspect had a gun in his hand. Petrocchi testified to seeing Rodriguez drop the gun to the ground in the rear yard of 137 or 139 Glenbridge Avenue.

Petrocchi caught Rodriguez soon after he dropped the gun. Rodriguez refused to put his hands in the air or get on the ground even though Petrocchi ordered him to do so at gunpoint. When Petrocchi attempted to handcuff Rodriguez, he struggled to avoid arrest and in the process injured Petroechi’s hand. A second officer arrived on the scene and helped Petrocchi handcuff Rodriguez. Petrocchi told Hames where Rodriguez had dropped the gun, and the gun was subsequently found there lying on the ground. The gun was a Glock .40 caliber semi-automatic pistol loaded with ten rounds. Yellow sunglasses were lying near the gun.

Rodriguez was indicted by a federal grand jury on April 7, 2004 and convicted by a jury on September 29, 2004 after a two-day trial. Prior to trial, on August 25, 2004, Rodriguez filed a motion to dismiss the case because of an alleged Speedy Trial Act violation. The court held a hearing on the motion to dismiss and denied it [112]*112on the same day, August 31, 2004. At trial, Rodriguez stipulated that he had a prior felony record and that the gun found in this case had traveled in interstate commerce. Petrocchi testified that while chasing Rodriguez, Petrocchi had “observed him to be carrying a firearm, a black firearm in his right hand.” In his radio broadcast at the time of the chase, introduced at trial, Petrocchi stated that it “looks like he’s got a gun in his hand.” Petrocchi testified further that he saw Rodriguez drop the firearm in the backyard of 137 Glenbridge Avenue and that he then chased him into the yard of 139 Glen-bridge. Petrocchi later clarified that “pretty much right as I broadcasted the description, we were in that backyard is when he dropped it.” On cross-examination, Petrocchi reiterated that Rodriguez had dropped the gun in the back of 137 Glenbridge before running into the back of 139 Glenbridge. Petrocchi testified that he could not remember whether there was a fence between the two yards. On redirect, he modified his testimony to indicate that he had found the gun in the yard of 139 Glenbridge, not 137, and that 139 was consistent with his police report. On recross, he indicated that he jumped over a fence to get into the backyard of 139 Glen-bridge.

Petrocchi testified that he and Hames walked back to the spot where Rodriguez had dropped the firearm and identified that area again as 137 Glenbridge. Pe-trocchi testified that he had found the gun. Hames testified that he himself had in fact found the gun. Officer Shawn Kennedy’s Offense Report and testimony corroborate Hames’ testimony. Kennedy testified that after he saw that Rodriguez had been apprehended, he went back to the area where the pursuit had started and radioed to Petrocchi, “We got a Glock.” Petrocchi responded, “I saw it in his hand when I came around the corner.”

Detective Paul Renzi testified that he did not test the gun for fingerprints, explaining that it was the policy of the unit at the time of the incident not to fingerprint “firearms that were seized on someone’s person.” On cross-examination, he testified that the policy not to test weapons for fingerprints had changed after Rodriguez’s arrest. Renzi further testified that even though he had the sunglasses found near the gun, he failed to fingerprint them either because he had “visually observed the glasses” for the presence of latent prints and seen none.

The defense called Evelyn Carabello, the driver of the red car and a grandmother of Rodriguez’s son. She testified that she did not see Rodriguez holding a gun that night. She further testified that while the police were chasing Rodriguez, Susan “Shorty” Bianehi, another passenger in the car, had gotten out of the red car and walked toward the area where the gun was later found. The defense also called Xiom-ara Guitard, another passenger. She testified that when the police were trying to pull over the red car, Bianehi showed her a black gun and whispered that it was hers. She said that Bianehi had later followed the police into the backyard as they chased Rodriguez. Guitard testified that she had lied when she had earlier denied being a passenger in the car and when she had denied seeing a gun.

In rebuttal, the government called Bian-chi, who testified that the gun was not hers, that she had never seen it before, that she never showed anyone the gun, and that she had remained on the street during the time that the police were chasing Rodriguez through the backyards. This differed markedly from a witness statement Bianehi had earlier provided to an attorney who is not otherwise named in the record. In the witness statement, [113]*113made on December 4, 2003, within a week of Rodriguez’s arrest, Bianchi said that after seeing the defendant get out of the car and start running, she “got out of the car got rid of the gun, which was a .40 ealibur [sic] (Glock) w/10 rounds walked back to the scene and seen what was going on, and what I seen was Alberto getting-arrested for my gun.” Before her trial testimony began, defense counsel, aware that Bianchi would likely recant the version of events she provided in the witness statement, moved to limit the government’s examination of Bianchi so as not to cause himself or his law firm to become a witness in the case if he had to reveal the existence of the prior inconsistent statement. The court denied the motion. On cross-examination, defense counsel did not ask about her prior witness statement but rather asked only one question, confirming that the Bianchi was over seven months’ pregnant at the time of her testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
457 F.3d 109, 2006 U.S. App. LEXIS 19433, 2006 WL 2143126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodriguez-ca1-2006.