United States v. Rodriguez-Rodriguez

• Court: Court of Appeals for the First Circuit
• Decided: May 5, 1998
• Docket: 96-1112
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 96-1112

                    UNITED STATES OF AMERICA,

                                 

                            Appellee,

                                 

                                v.

                                 

                     RAFAEL RIVERA-FIGUEROA,

                                 

                      Defendant, Appellant.

                       ____________________



No. 96-1290

                    UNITED STATES OF AMERICA,

                                 

                            Appellee,

                                 

                                v.

                                 

                      DAVID GARCIA-BELTRAN,

                                 

                      Defendant, Appellant.

                       ____________________



No. 96-1291



                    UNITED STATES OF AMERICA,



                            Appellee,

                                 

                                v.

                                 

                     MIGUEL A. COLLAZO-DIAZ,

                                 

                      Defendant, Appellant.

                       ____________________



No. 96-1292



                    UNITED STATES OF AMERICA,



                            Appellee,


v.



                 JOSE MIGUEL RODRIGUEZ-RODRIGUEZ,



                      Defendant, Appellant.



                       ____________________



          APPEALS FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



          [Hon. Hector M. Laffitte, U.S. District Judge]

                       ____________________



                              Before



                      Boudin, Circuit Judge,



                  Coffin, Senior Circuit Judge,



                and Shadur, Senior District Judge.



                       ____________________



     Marlene Aponte Cabrera, by appointment of the court, for

appellant Rafael Rivera-Figueroa.

     Raymond L. Sanchez-Maceira, by appointment of the court, for

appellant David Garcia-Beltran.

     Rafael F. Castro Lang by appointment of the court, for

appellant Miguel A. Collazo-Diaz.

     Yolanda C. Romagnolo, by appointment of the court, for

appellant Jose Miguel Rodriguez-Rodriguez.

     Mark Irish, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, Nelson Perez-Sosa, Assistant

United States Attorney, and Jose A. Quiles-Espinosa, Senior

Litigation Counsel, were on brief for the United States.


May 5, 1998


________________

                                

 * Of the Northern District of Illinois, sitting by designation.  BOUDIN, Circuit Judge.  Three appellants were convicted

of federal offenses growing out of a 1994 carjacking and murder in

 Puerto Rico and now appeal their convictions and sentences.  A

fourth appellant, who pled guilty to a single offense, seeks review

of his sentence.  We begin with a condensed version of the facts,

taken in the light most favorable to the verdict.  United States v.

Bergodere, 40 F.3d 512, 518 (1st Cir. 1994), cert. denied, 514 U.S.

                          1055 (1995).

      The appellants in this case are David Garcia-Beltran,

Rafael Rivera, Miguel Collazo and Jose Rodriguez-Rodriguez.  On

August 24, 1994, all four gathered at a party at the home of

Rivera's ex-wife Karla in Toa Alta, Puerto Rico.  Karla was then

involved with Abner Polanco.  Also present, among others, were

Fernando Rodriguez-Reich and Manuel Garcia-Rivera.  At some point

in the evening, the plan was hatched to murder Polanco; the tangled

motives apparently included a quarrel between Karla and Polanco,

jealousy on Rivera's part and a desire by some of the others for a

"pretty" pistol belonging to Polanco and audio equipment in his

car.

     At Garcia-Beltran's direction, Rodriguez-Reich was sent

to take other nonparticipating party-goers home so there would be

no witnesses.  Thereafter, Garcia-Beltran told other confederates

to seize Polanco, and Garcia-Beltran gave a revolver to Collazo. 

After a struggle, Rivera and Collazo seized Polanco and took away

his pistol.  The same two men, along with Garcia-Rivera and

Rodriguez-Rodriguez, forced Polanco into his own car and took his

car keys.  They then took Polanco in his car to an isolated area

and, at the direction of Collazo, Rivera and Rodriguez-Rodriguez

both shot Polanco.  All four perpetrators then fled in Polanco's

car.

     Later, Rivera turned over to Garcia-Beltran money that

had been taken from Polanco, and Rodriguez-Rodriguez gave Polanco's

pistol to Garcia-Beltran.  Rodriguez-Rodriguez and Collazo

transferred Polanco's audio equipment from Polanco's car to

Rodriguez-Reich's car; subsequently at a roadblock, the police

apprehended Collazo and Rodriguez-Reich in the latter's car with

the audio equipment aboard.  The police were aided in their efforts

by a so-called dying declaration of Polanco to be later described. 

     On August 31, 1994, a federal grand jury indicted

Rodriguez-Reich, Collazo and Garcia-Beltran.  A superseding

indictment added Rivera, Rodriguez-Rodriguez and Garcia-Rivera. 

Each defendant was charged in two counts:  one for carjacking, 18

U.S.C.  2119(3), and the other for using and carrying a firearm

during and in relation to a crime of violence, 18 U.S.C. 

924(c)(1).  The indictment charged aiding and abetting in addition

to direct participation.  18 U.S.C.  2(b).

     In due course, the government secured the cooperation of 

three of the six--Rodriguez-Reich, Rivera and Garcia-Rivera--and

after a plea bargain, each agreed to testify at the trial of the

remaining three.  Garcia-Beltran, Collazo, and Rodriguez-Rodriguez

were tried in October 1995.  Each defendant was found guilty on

each count, and these three men now appeal.  They are joined in the

appeal by Rivera, who seeks review only of his sentence.   

     At the threshold of this appeal, the appellants argue

that the carjacking statute exceeds Congress's power under the

Commerce Clause and is unconstitutional under United States v.

Lopez, 514 U.S. 549 (1995) (statute making unlawful the possession

of a firearm in a "school zone").  In contrast to the statute

involved in Lopez, 18 U.S.C.  2119 contains an element designed to

establish federal power, namely, that the vehicle must have been

transported, shipped, or received in interstate or foreign

commerce.  This is a specific element that must be charged and

proved to make the carjacking a crime.

     The use of motor vehicles to facilitate--indeed to

conduct--interstate and foreign commerce is obvious, and Congress's

effort to extend protection to the very instruments of interstate

and foreign commerce is reasonable on its face and amply supported

by precedent.  Perez v. United States, 402 U.S. 146, 150 (1971). 

At least seven circuits have already upheld the same statute

against constitutional challenge, and none has taken the view that

the statute is undermined by Lopez.  We join in the unanimous

opinion of the other circuits.

     It is quite true that the carjacking statute has become

one more device for extending federal jurisdiction over serious

crimes that hitherto were by tradition largely left to local

authorities and courts; the felon-in-possession statute is an even

more dramatic example.  18 U.S.C.  922(g)(1).  But so long as the

constitutional nexus exists, as it does here, the choice is

essentially one of policy.  Whatever the merits of the arguments

about federalizing once local crimes, the policy disputes are for

Congress to resolve.

     Turning to the merits, only one of the appellants

contests the sufficiency of the evidence.  Not surprisingly, the

challenge comes from Garcia-Beltran, who did not travel to the site

of the execution or participate in the murder.  Garcia-Beltran

argues that there was insufficient evidence to convict him of

carjacking because, while he may have had the intent to kidnap and

murder Polanco, there was no evidence that Garcia-Beltran intended

to commit carjacking.

     Although the government does not attempt to answer the

argument, there is an answer.  The statute provides that it is a

crime for someone with the intent to cause death or serious bodily

harm, to "take[] a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce from the

person or presence of another."  At the time of Polanco's murder,

the statute further required that this be done while "possessing a

firearm" as defined elsewhere in the Criminal Code.  A later

amendment altering this last quoted phrase is irrelevant to a pre-

amendment crime.  Pub.  L. 103-322, tit.  VI,  60003 (a)(14), 108

Stat.  1970.

     Under this statute, we may assume that a defendant who

"takes a motor vehicle" must know what he is doing, and that this

knowledge must be possessed by a defendant who merely directs

another to act (and so is liable as a principal, 18 U.S.C.  2(a))

or assists the taker (and is so liable as an aider and abettor, 18

U.S.C.  2(b)).  See United States v. Taylor, 54 F.3d 967, 975 (1st

Cir. 1995).  But nothing in the statute requires that the taking be

an ultimate motive of the crime.  It is enough that the defendant

be aware that the action in which he is engaged, whether by himself

or through direction or assistance to another, involves the taking

of a motor vehicle.

     Viewing the evidence in the light most favorable to the

verdict, we have no difficulty in finding sufficient evidence of

the requisite awareness on Garcia-Beltran's part.  Two witnesses

testified that Garcia-Beltran ordered the other defendants to take

Polanco away and kill him, knowing full well that his confederates

would take Polanco's car, and would be carrying, and ultimately

using, the gun he gave them.  In fact, the confederates initially

resisted the order, objecting to Garcia-Beltran that they did not

want to be involved in carjacking.

     We turn now to alleged trial errors.  The most

complicated claim stems from a declaration made by Polanco after

the shooting.  Although shot in the chest, he was able to make a

statement to the police before he died.  In the statement, he said

--according to the police sergeant's later report to the FBI--that

he had been kidnapped by someone whom he described in terms that

pointed to Garcia-Beltran and that there were three other persons

involved.  He gave some identifying information, although not the

proper names, as to two of the three other individuals and said

that the last he knew by sight only.

     In the government's view, the information given by

Polanco implicated Garcia-Beltran, Collazo and Rodriguez-Reich. 

However, the eyewitness evidence of the government's cooperating

witnesses makes clear that Garcia-Beltran and Rodriguez-Reich were

not part of the group that drove away with Polanco and later shot

him.  When the implicated appellants moved to suppress the

declaration, the government defended its admissibility as a dying

declaration, but the district court suppressed the statement,

saying that it was "inaccurate.  It's full of riddles.  It's full

of questions.  It's contradicted." 

     The first claim on appeal arising out of the suppression

of Polanco's statement is that of Rodriguez-Rodriguez.  He argues

that the alleged dying declaration should have been admitted as

exculpatory evidence since Polanco did not name Rodriguez-

Rodriguez.  The government contends that this claim was waived

because it was not raised at the suppression hearing.  It also

argues that the dying declaration rule applies by its terms only to

a prosecution for "homicide," Fed. R. Evid. 804(b)(2), and

therefore not to a "carjacking" even if a death is involved.

     Bypassing both issues for a moment, we agree with

Rodriguez-Rodriguez that the district court cannot exclude a dying

declaration merely because the judge thinks that it is unreliable. 

In context, the district judge's remarks come close to being--and

may even have been intended as--a ruling under Fed. R. Evid. 403

that the probative value of the evidence was substantially

outweighed by its capacity for unfair prejudice or for misleading

the jury.  But the judge's remarks were directed against the use of

the declaration to inculpate two of the appellants; the calculus

would be different if the declaration were used only to exculpate--

although that would have almost certainly required a severance.

     The difficulty is that there was no objection from

Rodriguez-Rodriguez when the other defendants pursued their motion

to suppress in the district court.  Had the objection been timely

made, the court would have been confronted with a different set of

arguments for admissibility, a conflict in position among the co-

defendants, and the possibility of a severance if the court agreed

that the evidence should be admitted as to one co-defendant but

excluded as to the others.  This was the occasion for Rodriguez-

Rodriguez to object to the suppression motion, and yet no such

objection was made until six months later, when Rodriguez-Rodriguez

first moved for a severance so that the declaration would be

admitted.

     A motion to suppress evidence effectively advances the

time at which a party who wants that evidence admitted has to argue

for that result.  Although it may be easier to revisit such rulings

than ones made in the course of the trial, rulings in limine are

relied upon by the court and the parties in preparing for trial. 

The failure to object to a suppression motion is as much a waiver

as any other failure to object, subject always to the right of a

party who waived an objection to argue on appeal for plain error

review.  Fed. R. Evid. 103(d); United States v. Olano, 507 U.S. 725

(1993).

     Under the plain error standard, it is necessary to show

not only that the exclusion of evidence was error--which we will

assume purely arguendo--but also that there is a substantial

likelihood that the admission of the evidence would have led to a

different result.  Olano, 507 U.S. at 734-35 ("must have affected

the outcome").  But Polanco's dying declaration did not say that

the persons he "named" were the only ones involved; on the

contrary, he said that there was a fourth person whom he could not

identify.  Without a showing that Polanco knew Rodriguez-Rodriguez

well enough to name him, the dying declaration had limited tendency

to exculpate Rodriguez-Rodriguez; and in view of the direct

testimony against him by co-defendants, we cannot find it likely

that admitting the dying declaration would have led to an

acquittal.

     Collazo has a different argument relating to the dying

declaration.  He asserts that the declaration was properly excluded

by the district judge but was then effectively introduced by

prosecution testimony through the back door.  The testimony was

that of a police officer who said, in direct examination, referring

directly to Collazo by a nickname:

     The cream-colored Toyota went past with his

     [sic] windows down.  Three individuals were in

     it.  I was able to recognize one of them as

     one of the persons who had been named as

     having to do with the case, and I told the

     sergeant:  "It's them.  There goes Guelito

     [the nickname of Collazo]."



     It is quite true that the police were looking for Collazo

and several others immediately after the shooting because they were

identified at least by nicknames or other indicia in Polanco's

dying declaration, but the trial testimony made no mention of the

declaration.  Only a clairvoyant juror could have guessed at its

existence.  All that the jurors learned was that for some unknown

reason, the police were seeking Collazo in connection with the

case.

     Of course, in many contexts, it might be error to tell

the jury that the police had unknown information connecting

defendant to the crime.  But the glancing reference in this case

does not approach the force of a dying declaration actually naming

the defendant.  Further, any mischief worked by this comment was

dwarfed by the eyewitness testimony of collaborators linking

Collazo to the crime and by other evidence, including proof that

Collazo was arrested shortly after the murder in a car filled with

audio equipment stolen from Polanco's car.

     The last issue that warrants separate discussion is a

claim of Garcia-Beltran involving jury instructions.  On the last

day of trial, Garcia-Beltran asked that the jury be instructed on

the elements of the crime of being an accessory after the fact.  18

U.S.C.  3.  The district judge rejected the request on the ground

that while the evidence permitted the jury to find that Garcia-

Beltran was a full participant in a carjacking, there was no record

basis for the accessory-after-the-fact theory.  Garcia-Beltran

renewed his objection after the charge was given and now claims

error.

     It might not have been literally impossible for a

rational jury to acquit Garcia-Beltran of carjacking but still to

find that he was an accessory after the fact.  There was testimony

from one witness that Garcia-Beltran was asleep at the time that

the carjacking plan was adopted but that he did participate in

post-crime activities that might have been characterized as

concealing the crime or hindering the investigation.  In theory,

but only in theory, a jury might have accepted this testimony,

while disbelieving the far more substantial testimony as to Garcia-

Beltran's central role in the crime.

     However, even on this premise, the legal basis for the

instruction is thin.  A defendant is ordinarily entitled to a

lesser-included-offense charge, if consistent with the evidence. 

Schmuck v. United States, 489 U.S. 705, 715-16 & n.8 (1989); seealso Fed. R. Crim. P. 31(c).  For obvious reasons, it is often to

the defendant's advantage to request such a charge.  But using the

"elements" test adopted by the Supreme Court in Schmuck, 489 U.S.

at 716, an accessory-after-the-fact offense is almost never going

to be a lesser included offense as to the principal crime.

     The Ninth Circuit has assumed in a passing dictum that an 

accessory-after-the-fact charge could be required at the

defendant's behest as a lesser-included-offense instruction, United

States v. Dinkane, 17 F.3d 1192, 1200 (9th Cir. 1994), but the

court's brief discussion overlooks the Supreme Court's "elements"

approach.  A more defensible precedent from Garcia-Beltran's

standpoint is United States v. Brown, 33 F.3d 1002, 1003-04 (8th

Cir. 1994).  There, the Eighth Circuit held that where justified by

the evidence, an accessory-after-the-fact instruction might have to

be given as a form of "defense."

     The Eighth Circuit's approach appears to us liable to

mislead the jury.  A charge normally tells the jury that each

element of the charged offense must be proved.  To give the jury an

additional set of elements for an uncharged crime that is not a

lesser included offense, and of which the defendant seemingly

cannot be convicted, seems to us a recipe for confusion.  Where

appropriate, the court can properly explain to the jury that the

defendant's theory of the case is that he merely assisted in

covering up the crime but did not participate in its commission. 

This achieves the Eighth Circuit's purpose without the same risk of

confusion.

     In all events, in this case the Eighth Circuit's

instruction--or the Ninth Circuit's for that matter--would not have

altered the result.  The evidence that Garcia-Beltran was an

accessory after the fact was quite limited, but the evidence of his

complicity in the carjacking itself was overwhelming, once the jury

decided (as it clearly did) to credit the eyewitness testimony of

the confederates who testified at trial.  If it was error to omit

the accessory-after-the-fact instruction, which we do not think it

was, it certainly was harmless error.

     About a dozen additional claims have been made by the

four appellants, including objections to the voir dire, alleged

prosecutorial misconduct, refusal to replace appointed counsel,

admission of threats, failure of the judge to depart downward in

sentencing and similar matters.  We have reviewed each of these

charges.  While a number of them are legitimately raised, they are

adequately answered in the government's brief or otherwise present

no issue that needs substantial discussion.

     Accordingly, the convictions and, to the extent

challenged, the sentences imposed are affirmed.