United States Court of Appeals For the First Circuit
No. 19-1652
UNITED STATES OF AMERICA,
Appellee,
v.
CRISTIAN SERRANO-DELGADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
Victor Gonzalez-Bothwell, Assistant Federal Public Defender, with Eric Alexander Vos, Federal Public Defender, Franco L. Pérez- Redondo, Assistant Federal Public Defender, and Liza L. Rosado- Rodríguez, Research and Writing Specialist, on brief, for appellant. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Chief, Appellate Division, were on brief, for appellee.
March 22, 2022 KAYATTA, Circuit Judge. Cristian Serrano-Delgado drove
a car that transported two passengers to and from a robbery of a
bar, during which one of his passengers killed an off-duty police
officer. The government charged all three men with conspiracy to
commit a robbery, committing the robbery, and discharging a firearm
in relation to a crime of violence resulting in death. The two
men who held up the bar negotiated guilty pleas, but Serrano opted
to go to trial. After a jury found him guilty on all counts, the
district court sentenced him to thirty years in prison. Serrano
now challenges several aspects of his trial and sentence. Finding
none of his challenges availing, we affirm.
I.
A.
The events of this case occurred on a single night in
2017, during which Herol Café -- a bar and restaurant in Ponce,
Puerto Rico -- was robbed and a patron was killed. Before the
robbery, Serrano had been driving two other men (Jonathan Valentín-
Santiago and Rubén Miró-Cruz) through the streets of Ponce.
Security cameras recorded his car as he drove past Herol Café three
times in five minutes. After the third pass-by, Serrano parked
the car up the block and pointing away from the bar, even though
there was plenty of parking much closer to the bar on both sides
of the street.
- 2 - Valentín and Miró got out of the car and headed toward
Herol Café. Serrano waited near the trunk of the vehicle, where
(as he later admitted to an FBI agent) he "made as though he was
looking for something." He testified at trial, however, that he
was innocently tying down boxes of sneakers he had in the trunk
because Valentín had been complaining of the noise while they were
driving.
Outside the bar, a group of men were playing dominoes.
With his face covered by a bandana, Valentín announced to the group
that he was holding them up and that he and his partner would kill
anyone who moved. The men put their jewelry and money on the
table. Valentín then entered the bar while Miró, also masked and
armed with a knife, stood watch over the men outside. Inside,
Valentín pulled out a gun and ordered the patrons to give him
money. One of the patrons, an off-duty police officer, took out
his gun and fired at the robber, hitting Valentín in the abdomen
three times. Valentín returned fire, killing the officer.
Upon hearing the shots, Miró raced back to the car.
Seconds later, Valentín exited and began to hobble toward the car.
There was cross-fire in the street as Valentín shot behind his
back at the bar while the owner, using the officer's gun, returned
fire. Serrano waited for Valentín to get into the car before he
drove off. An eyewitness in a nearby building saw Valentín, with
his face still masked, firing his pistol while he limped toward
- 3 - the car. She testified that the car "left fast" as soon as Valentín
got in. Serrano claimed at trial that, upon returning to the car,
Valentín threatened to kill him unless he drove to a hospital. A
tire blew out on the way, so Serrano parked on a nearby street and
took a bleeding Valentín out of the car. He then called his mother
to pick him up because he didn't have a spare tire.
A police officer who responded to the scene -- and who
had already watched security footage of the incident -- heard a
radio report of an injured person in a nearby subdivision. He
went to investigate and "immediately recognized . . . the person
who shot" the off-duty officer because he was wearing "the same
clothes" and bandana. He radioed a medical emergency, and Valentín
was quickly transported to the hospital.
Serrano, meanwhile, had been picked up by his mother.
Once home, he gathered his brother and girlfriend to return to his
car to fix the tire. Back at the car, Serrano started to clean
Valentín's blood off the seats. He found a shirt, a cap, a
kerchief, and a small rag, some of which were soaked in blood, and
threw it all onto the property of an abandoned house nearby.
Serrano's brother was changing the tire when a police officer
arrived, recognized the car from the description of the one that
sped away from the robbery, and arrested Serrano, his girlfriend,
and his brother.
- 4 - After being Mirandized, Serrano spoke to an FBI agent.
During the interview, he told the agent that Miró lived in the
Dr. Pila Housing Project. The next day, the police arrested Miró
at that address. Serrano later testified at trial that he had
never met Miró before that night.
B.
Serrano, Valentín, and Miró were charged with conspiracy
to commit a robbery affecting interstate commerce in violation of
the Hobbs Act (18 U.S.C. § 1951(a)) and committing the Herol Café
robbery (18 U.S.C. § 1951(a)), plus two added counts related to
Valentín's gun: first, for discharging a firearm "during and in
relation to crimes of violence" (18 U.S.C. § 924(c)(1)(A)(iii)),
and second, for causing the death that resulted (18 U.S.C.
§ 924(j)).1 Valentín and Miró each pleaded guilty to a reduced
version of the charges, but Serrano chose to go to trial. After
a 7-day trial, a jury convicted Serrano on all counts.
II.
For purposes of this appeal, there is no dispute that
Valentín and Miró committed an armed robbery at a bar during which
Valentín shot a patron to death. The principal question in this
case is whether the jury properly found Serrano also liable for
those acts. To establish that vicarious liability, the government
1 A superseding indictment added a fifth charge solely against Valentín for being a felon in possession of a firearm.
- 5 - took a two-step approach. First, it charged him with both aiding
and abetting the robbery (by serving as the driver) and with
conspiring to commit the robbery; second, it secured a so-called
Pinkerton instruction, which informed the jury that -- if it found
Serrano guilty of the charged conspiracy -- it could also find him
guilty of the firearm discharge and resulting death if those acts
were both in furtherance of the conspiracy and reasonably
foreseeable to Serrano. See Pinkerton v. United States, 328 U.S.
640, 647–48 (1946). The jury so found.
Challenging his conviction in toto, Serrano argues that
no rational jury could have found that he knew that Valentín and
Miró were planning on robbing the bar, hence he could not be liable
for aiding and abetting the robbery or for conspiring to commit
the robbery. In short, he was an unwitting dupe, not a witting
participant. Relatedly, he contends that the Pinkerton
instruction should not have been given and that the Pinkerton
instruction as given was too imprecise and confusing. Serrano
also challenges two evidentiary rulings by the trial court
rejecting his effort to introduce exculpatory testimony from
Valentín, and he argues that his convictions under sections 924(c)
and (j) must be reversed because they may have been premised on
acts that are not crimes of violence (as required by statute).
Finally, he contends that his 30-year sentence is disproportionate
- 6 - to his co-conspirators' sentences and that, regardless, it is
otherwise substantively unreasonable.
We consider first Serrano's contention that there was
insufficient evidence to find beyond a reasonable doubt that he
was aware of what Valentín and Miró planned to do, much less that
he agreed to participate and help them as the driver. "The test
is whether, taken as a whole and viewed in the light most favorable
to the government, the evidence, and all legitimate inferences to
be drawn therefrom, would support a rational trier of fact's
finding of guilt beyond a reasonable doubt." United States v.
Martinez, 922 F.2d 914, 923 (1st Cir. 1991) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Our review is de novo.
United States v. Portalla, 496 F.3d 23, 26 (1st Cir. 2007).
Certainly Serrano behaved exactly as he would have had
he been part of a three-person group set on committing a robbery.
He was with Miró and Valentín before the robbery. He provided the
transportation to take them to the bar. He drove by the bar three
times. He let his two passengers out of the car up the block --
even though there was plenty of parking closer -- pointing away
from the bar. He waited for the masked robbers to return, even
after the shooting began. He then served as a get-away driver,
speeding off from the scene. And, finally, he tried to cover up
evidence of his involvement.
- 7 - Serrano offered the jury an innocent interpretation of
this evidence: Valentín just introduced him to Miró that night,
and Serrano took them on a joy ride with no idea that he was
assisting them in a robbery, at least until they returned to the
car, at which point he claims that he was compelled at gunpoint to
drive his passengers away.
While a reasonable juror might have believed Serrano's
story, after hearing him testify these jurors did not. And we
cannot say that the jurors lacked a basis for finding the
government's version of events correct beyond a reasonable doubt.
A juror could reasonably have thought it unlikely that Valentín
and Miró would depend on an unwitting get-away driver who might
act quite unpredictably when the robbery ensued. Plus, why would
Serrano stand waiting outside at the trunk of the car while they
went to the bar unless he was serving as a lookout and expecting
them to return quite quickly? And what did he think the repeated
drive-bys were all about? Perhaps most damning is Serrano's
contemporaneous statement to an FBI agent that he felt a need to
feign looking in his trunk, followed by a different explanation at
trial. The discrepancy and the sense of guilt it suggests could
have led a reasonable juror to be skeptical of his whole story.
Cf. United States v. Marchena-Silvestre, 802 F.3d 196, 203 (1st
Cir. 2015). Similarly, Serrano's knowledge of Miró's address did
- 8 - not fit easily with his claim that he had just met Miró that
evening.
Viewing all of this in the light most favorable to the
verdict, there was sufficient evidence for a jury to find beyond
a reasonable doubt that Serrano knew from the outset what Valentín
and Miró were up to. And if he did what he did with such advance
knowledge, he was clearly guilty of both robbery as an aider and
abettor, see United States v. Palmer, 203 F.3d 55, 66 (1st Cir.
2000), and of conspiring (i.e., agreeing) to assist in that
robbery, see United States v. McDonough, 727 F.3d 143, 156 (1st
Cir. 2013) (explaining that proof of conspiracy "may include the
defendants' acts that furthered the conspiracy's purposes").
We turn next to Serrano's challenges to the use of a
Pinkerton instruction, which allows a jury to find a defendant
liable for the substantive crimes his co-conspirators committed in
furtherance of the conspiracy if it were reasonably foreseeable
that those crimes would occur. United States v. Bucci, 525 F.3d
116, 132 (1st Cir. 2008).
The instruction gets its name from a 1946 Supreme Court
opinion arising out of an appeal by two brothers who conspired to
defraud the United States of tax revenue. Pinkerton, 328 U.S. at
641. Although they agreed to commit fraud, only one of the
brothers actually committed the particular fraud on which the
- 9 - convictions were sustained. Id. at 645. Indeed, the other brother
was incarcerated during the relevant time period. Id. at 648
(Rutledge, J., dissenting in part). Nevertheless, the Court held
that "acts in furtherance of the conspiracy are . . . attributable
to the other[] [co-conspirators] for the purpose of holding them
responsible for the substantive offense." Id. at 647 (majority
op.). The Court then put limits on the breadth of its holding,
explaining that a co-conspirator could not be liable if the
substantive offense "was not in fact done in furtherance of the
conspiracy, did not fall within the scope of the unlawful project,
or was merely a part of the ramifications of the plan which could
not be reasonably foreseen as a necessary or natural consequence
of the unlawful agreement." Id. at 647–48.
We have applied Pinkerton's formulation consistently
since then. See, e.g., United States v. Vázquez-Botet, 532 F.3d
37, 62 (1st Cir. 2008) ("[U]nder the Pinkerton doctrine, a
defendant can be found liable for the substantive crime of a
coconspirator provided the crime was reasonably foreseeable and
committed in furtherance of the conspiracy."). We have also
cautioned, however, that "a Pinkerton charge 'should not be given
as a matter of course.'" United States v. Sanchez, 917 F.2d 607,
612 n.4 (1st Cir. 1990) (quoting United States v. Sperling, 506
F.2d 1323, 1341 (2d Cir. 1974)). In some complex cases, the charge
can cause confusion. See United States v. Manzella, 791 F.2d 1263,
- 10 - 1267 (7th Cir. 1986). As an example, we have said that concern
can arise "particularly where the jury is being asked . . . to
infer, on the basis of a series of disparate criminal acts, that
a conspiracy existed." United States v. Vázquez-Castro, 640 F.3d
19, 25 (1st Cir. 2011) (quoting Sanchez, 917 F.3d at 612 n.4); see
also Sperling, 506 F.2d at 1342 (disapproving of Pinkerton
instruction where evidence of substantive acts was great, but the
evidence of a conspiracy linking them together was weak, because
those "circumstances [are] quite different from those that gave
[Pinkerton] birth"). At the same time, we have acknowledged that
"some interplay between the jury's assessment of guilt on the
substantive counts and the conspiracy charge is both natural and
appropriate." See United States v. Wester, 90 F.3d 592, 597 (1st
Cir. 1996).
Here, Serrano argues that this is a case in which it was
error to give the charge at all due to the caution expressed in
Sanchez and Sperling. He also argues on appeal that the
instruction as given was deficient in form because it was
"compressed," "overcomplicated the jury's task," and left "complex
analytical tasks totally unexplained." The government responds
that Serrano failed to preserve these objections and that, in any
event, the district court did not err in giving the charge. As we
next explain, we find the objection to the decision to give a
Pinkerton instruction preserved, but unconvincing; however, we
- 11 - conclude that Serrano failed to preserve any objection to the form
of the instruction as given.
1.
The government contends that Serrano failed to preserve
either of his objections to the Pinkerton charge.
As to his objection that a Pinkerton charge should not
have been given at all, the government contends that his post-
charge objection did not meet the specificity requirement of
Federal Rule of Criminal Procedure 30(d). We disagree. Our
circuit is an outlier in that we deem objections to jury
instructions automatically unpreserved unless made after the
instructions are given and before the jury retires. See United
States v. Roberson, 459 F.3d 39, 45 (1st Cir. 2006) (explaining
that, in this circuit, "a litigant must lodge a specific objection
and state the grounds for the objection after the court has charged
the jury and before the jury begins deliberations" (emphasis in
original)). This outlier rule has recently elicited significant
criticism from several members of this court. See United States
v. Pérez-Rodríguez, 13 F.4th 1, 35 (1st Cir. 2021) (Lipez, J.,
concurring) (explaining that our idiosyncratic requirement that
defendants re-raise their jury instruction challenges after the
charge is a-textual and out of step with modern trial practice);
id. at 35–36 (Barron, J., concurring) (same); id. at 37 n.19
(Kayatta, J., dissenting) (same). Our panel nevertheless has no
- 12 - power to ignore it as circuit precedent. We also, though, have no
reason to expand upon it or to construe it broadly.
The relevant sequence here was as follows: The district
court entertained proposals and objections as to jury instructions
before instructing the jurors. Serrano submitted a written
objection to the proposed Pinkerton instruction. Quoting Sanchez,
he explained that this circuit has cautioned that "a Pinkerton
charge should not be given as a matter of course," "particularly
where the jury is being asked to make the converse inference; that
is, to infer, on the basis of a series of disparate criminal acts,
that a conspiracy existed." 917 F.2d at 612 n.4 (internal
quotation marks omitted). He argued that this case presents that
precise concern because "the jury must infer from different acts,
all based on circumstantial evidence, that a conspiracy existed."
The court overruled the objection and gave the Pinkerton
instruction. After giving all the instructions, the district court
again invited objections. Serrano's counsel once more objected to
the decision to give the Pinkerton instruction, stating:
It is an instruction that should not have been included because of its broad application. This case in the indictment and the evidence presented talked about aiding and abetting, and the Pinkerton doctrine gives the jury another option, a broader option that, without knowingly, it can find the Defendant guilty. And we cite United States v. Sanchez, 971 F.2d 607, from the First Circuit, 1990.
- 13 - The government questions whether the objection was
nevertheless too cryptic because counsel simply referred to
Sanchez without explaining why he was citing the case. See Fed.
R. Crim. P. 30(d) (requiring counsel to "inform the court of the
specific objection" to a jury instruction and "the grounds for the
objection"). But "Sanchez" by that point was already shorthand
for the concern being conveyed. Certainly if counsel objected to
admitting a defendant's confession by saying "no Miranda warning,"
she would not need to explain what Miranda is. Sanchez, of course,
is not so well known generally, but in that courtroom at that time,
everyone knew what Sanchez was and of its relevance precisely
because of the pre-charge communications.
So while a pre-charge objection by itself preserves
nothing under our precedent, there is no reason why we need to
ignore it in deciding whether a post-charge objection was
sufficiently detailed to preserve a specific objection. In this
manner, we retain any benefit sought to be attained by our post-
charge requirement (i.e., that the judge knows that a specific
objection has not been dropped or satisfied by the instructions as
given), while avoiding any necessity to belabor a point well
understood by the judge.
That leaves the matter of the form of the Pinkerton
instruction as given. On this, we agree with the government that
Serrano preserved no objection. Indeed, his capable counsel in
- 14 - raising numerous objections to various instructions voiced no
concern at all that the form of the Pinkerton instruction was
flawed in any way.
2.
Turning first to the merits of Serrano's preserved
objection to the Pinkerton charge, we begin with an examination of
the work done by the charge. The substantive crimes here are the
robbery, the discharge of a firearm in relation to a robbery, and
the resulting death.
The Pinkerton charge performed no work for the robbery
conviction; rather, the case for finding Serrano to have aided and
abetted the robbery turned entirely on whether Serrano's conduct
as driver was unwitting. As we have explained, the evidence
supported a negative answer beyond a reasonable doubt. Nor was
there any reason to rely on the Pinkerton charge to reach that
conclusion. To the contrary, in this case it was Serrano's own
participation in the robbery that provided the basis for inferring
an agreement to commit the robbery, not vice versa. Thus, the
jurors could not have found him guilty of conspiring to aid and
abet the robbery without first concluding that he did in fact aid
and abet the robbery.
The work done by the Pinkerton charge concerned,
instead, the latter two crimes (the discharge of the gun and the
resulting death). Without the Pinkerton charge, the jurors could
- 15 - have found Serrano guilty on those counts only under an aiding-
and-abetting theory, which would have required the government to
prove beyond a reasonable doubt that Serrano had actual advance
knowledge that Valentín possessed the gun. See Rosemond v. United
States, 527 U.S. 65, 77–80 (2014). Pinkerton, by contrast, allowed
a finding of liability if the use of the gun and resulting death
were merely "reasonably foreseeable" (and in furtherance of a
conspiracy).
Given that aiding and abetting a crime could often
support an inference of conspiracy to commit the crime, one might
ask why Pinkerton is not more frequently employed. The answer, we
suspect, is that prosecutors and district courts prudently pay
heed to our warnings regarding its use when the evidence of a
separate agreement is not strong and the case is complex.
In any event, Pinkerton is the law in federal court, and
there was nothing confusing about its application in this easy-
to-understand case centered on a single robbery in which all three
suspects substantially participated in their respective roles.
Nor is this a case in which the crimes to which the Pinkerton
charge was relevant (the discharge and the resulting death) were
themselves the basis for inferring a conspiracy in the first
instance. Rather, what we have here is what one academic has
dubbed "[t]he classic example" of someone liable under Pinkerton,
namely "[t]he lookout who stays behind in the car." Jens David
- 16 - Ohlin, Group Think: The Law of Conspiracy and Collective Reason,
98 J. Crim. L. & Criminology 147, 147–48 (2007). The lookout "is
just as guilty as" the bank robber who shoots a security guard,
"as long as it was reasonably foreseeable that the plan might go
awry and result in physical violence." Id. at 148. Accordingly,
the district court did not abuse its discretion in deciding to
give a Pinkerton instruction.
3.
As for Serrano's unpreserved argument that the Pinkerton
instruction was confusing as given, Serrano can only succeed if he
meets the stringent requirements of plain error review, under
which:
a reviewing court may set aside a challenged portion of a criminal sentence if, and only if, the appellant succeeds in showing (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.
United States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en
banc) (cleaned up).
Serrano on appeal makes no effort to show that he can
satisfy the plain error standard in seeking review of the
particular form of the instruction. Even after the government
waved the plain error flag in its brief, Serrano failed to argue
in reply either that this argument was preserved or that he meets
- 17 - the plain error standard. See United States v. Pabon, 819 F.3d
26, 33–34 (1st Cir. 2016) (holding that plain error review is
waived if its four-part test is not argued at least in reply).
The instruction given by the district court2 largely
tracks the circuit's model Pinkerton instruction. See Pattern
Jury Instructions for the District Courts of the First Circuit
§ 4.18.371(2). Arguably that instruction could be criticized for
permitting liability if it is foreseeable a co-conspirator "might
commit" the charged substantive crime, rather than Pinkerton's
formulation, which discussed whether the offense could be
"reasonably foreseen as a necessary or natural consequence of the
unlawful agreement." Pinkerton, 328 U.S. at 648. And it would
have been better had the district court separated out each of the
counts rather than linking them disjunctively in a single
instruction. But there is nothing here that comes close to the
type of miscarriage of justice that might arguably have allowed us
to overlook Serrano's waiver and also find plain error.
C.
We turn next to the gun charges.
Section 924(c)(1)(A)(iii) has two elements: The government has to
prove beyond a reasonable doubt that, (1) "during and in relation
to" a "crime of violence," (2) the defendant "discharged" a
2 We have attached as an appendix to this opinion the jury instruction given in this case.
- 18 - firearm. The 924(j) count only "requires proof of one additional
fact: the death." United States v. García-Ortiz, 657 F.3d 25, 28
(1st Cir. 2011).
Serrano does not argue that the government failed to
prove a discharge of the gun or the resulting death. He argues
instead that he did not actually know that a gun would be used.
But actual knowledge is not required under Pinkerton. United
States v. Carter, 19 F.4th 520, 527 (1st Cir. 2021). And,
presumably because few robbers enter a busy bar to commit a robbery
without a means of deterring resistance, he does not claim that
the use of a gun would not have been reasonably foreseeable to one
who knew of the intended robbery.
Serrano's argument trains instead on the statutory
requirement that the discharge and death need to have occurred
during and in relation to a crime of violence. While Hobbs Act
robbery is a crime of violence, see United States v. García-Ortiz,
904 F.3d 102, 109 (1st Cir. 2018), the government concedes that
conspiring to commit such a robbery no longer counts as one, see,
e.g., United States v. Lara, 970 F.3d 68, 74 (1st Cir. 2020)
(accepting the government's concession on this precise point).
Serrano therefore reasons that the jurors might have found that
the discharge and death occurred only during and in relation to
the conspiracy, not the robbery. And pointing to the "categorical
approach" employed in other contexts, see, e.g., Descamps v. United
- 19 - States, 570 U.S. 254, 260–61 (2013) (explaining the categorical
approach used to determine whether a past conviction qualifies as
a crime of violence under the Armed Career Criminal Act), he
concludes that we must assume that the jurors so found, see In re
Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016) (concluding that a
"crime of violence" finding cannot be upheld where a general
verdict makes it impossible to tell whether the jury "reach[ed] a
unanimous agreement on during which crime it was that [the
defendant] possessed the firearm"). Finally, he contends that the
Pinkerton instruction "provided a theory of guilt that would leave
no viable crime of violence predicate whatsoever" because "it is
[e]minently possible that [his] substantive convictions rested on
the jury's conspiracy finding."
Whatever one may think of this line of reasoning in the
abstract, it entirely fails on this record. Simply put, it is not
possible for the jurors to have found that the discharge and death
occurred during and in relation to the conspiracy, but not during
and in relation to the robbery. No party suggested to the jury
otherwise. Nor did the jurors need to decide whether robbery is
a crime of violence, which is a matter of law; they only needed to
have decided beyond a reasonable doubt that the discharge and death
occurred during and in relation to the robbery. And there is no
way to read the general verdict as not resting on such a finding
because, as we have explained above, on these facts the jury could
- 20 - have found Serrano guilty of conspiracy only by first concluding
that he knowingly joined the robbery as the get-away driver.
D.
Serrano's evidentiary challenges arise out of his
attempt to secure the benefit of helpful testimony from Valentín,
the shooter. At his change-of-plea hearing, Valentín agreed that
he had conspired with both Miró and Serrano to commit the robbery
at Herol Café. However, once Valentín was convicted, but before
he was sentenced, he turned his attention to trying to get Serrano
off the hook. He did this by telling his attorney that Serrano
actually had no prior knowledge that Valentín and Miró were
planning a robbery. Valentín's attorney then conveyed this
information to Serrano's counsel, and to the government and the
judge hearing Serrano's case.
Serrano asked first that the court compel Valentín to
testify. In response, Valentín invoked his right not to testify
under the Fifth Amendment, citing the fact that if he testified as
forecast he could be admitting that he committed perjury at his
change of plea hearing when he agreed that Serrano was in on the
planned robbery. After having Valentín confirm under oath and
outside the presence of the jury his refusal to testify, the trial
court rejected Serrano's request.
Serrano's counsel then moved to call Valentín's attorney
to tell the jury what Valentín had told her. In that manner,
- 21 - Serrano sought to get the benefit of Valentín's assistance without
Valentín having to swear under oath to any statement contrary to
his testimony at his change of plea hearing, and Valentín would
also be insulated from cross-examination by the government. The
trial court declined this gambit. It refused to allow Serrano to
call Valentín's attorney as a witness. Serrano now argues that
the district court twice erred: first, by conducting an inadequate
voir dire of Valentín; and second, by rejecting Serrano's back-up
plan to call Valentín's attorney to testify as to what Valentín
told her.
When Valentín was called and the Fifth Amendment issue
was raised, Serrano's counsel told the court, "[A]ll I need is
[Valentín] to take the stand and say if he is going to take the
Fifth or not." Government counsel agreed, noting that while the
government would normally insist on a question-by-question
assertion of the Fifth Amendment privilege, here it agreed with
Serrano's proposed general inquiry because his counsel had already
provided the questions to the court. The court then did precisely
as Serrano's counsel proposed: It called Valentín to the stand in
a voir dire hearing outside the presence of the jury and asked him
if he would "take the Fifth Amendment" if called to testify. When
Valentín answered "[y]es," the court denied Serrano's request to
call Valentín. Not surprisingly, Serrano's counsel did not object
- 22 - to the court having done precisely what Serrano's counsel asked
the court to do. Rather, Serrano's counsel moved immediately for
leave to call Valentín's attorney as a witness.
In view of the foregoing, any objection to the procedure
employed by the district court in determining whether Valentín
should be called as a witness was waived. Absent extreme
circumstances not present here, a defendant cannot ask a trial
court to follow a certain procedure and then be heard to complain
only later on appeal that the trial court did as requested. See
United States v. Chen, 998 F.3d 1, 6 (1st Cir. 2021) ("An issue
may also be waived if counsel's own conduct invited the trial
judge's ruling."); see also United States v. Kakley, 741 F.2d 1,
3 (1st Cir. 1984) (rejecting a claim of error because counsel
requested the challenged instruction).
By contrast, Serrano preserved his challenge to the
denial of his request to call Valentín's attorney to testify that
Valentín told her that Serrano had no advance notice of the
robbery. We review this preserved objection to the district
court's evidentiary ruling for abuse of discretion and will reverse
"only if [we are] 'left with a definite and firm conviction that
the court made a clear error of judgment.'" United States v.
Sweeney, 887 F.3d 529, 537 (1st Cir. 2018) (quoting United States
v. Joubert, 778 F.3d 247, 253 (1st Cir. 2015)).
- 23 - As the sole basis for proffering the out-of-court
statement attributed to Valentín, Serrano relies on
Rule 804(b)(3). To be admissible under Federal Rule of
Evidence 804(b)(3), the out-of-court statement must be, inter
alia, "supported by corroborating circumstances that clearly
indicate its trustworthiness." Not having been born yesterday,
the district court was not persuaded that the circumstances here
clearly indicated trustworthiness. Valentín had already testified
under oath precisely to the contrary of the proffered statement.
Nor did Valentín or Serrano proffer any additional evidence
corroborating his new version of events. We also share the
government's concern that this sort of gambit poses a risk of abuse
by facilitating efforts of defendants to secure pleas with one
story while assisting a co-conspirator with another, all while
avoiding telling the exculpatory story under oath. All in all,
there is plenty in these circumstances to support the trial court's
evidentiary ruling under Rule 804(b)(3); it was not an abuse of
discretion.
E.
We arrive at Serrano's final contention: Even accepting
all of the above, he maintains that his lengthy thirty-year
sentence was substantively unreasonable. The district court
calculated his United States Sentencing Guidelines range for
counts 1 through 3 separately from count 4 (the discharge) because
- 24 - that count carried a mandatory consecutive minimum sentence of ten
years. See 18 U.S.C. § 924(c)(1)(A)(iii), (D)(ii). For the first
three counts, Serrano's initial Guidelines sentencing range was
life imprisonment (due primarily to the death), but the district
court downwardly departed sua sponte for his base offense level --
from 43 to 38 -- because Serrano was unarmed and did not himself
discharge a weapon. As adjusted, the range for those three counts
became 235 to 293 months, rather than life. (Serrano concedes
that the district court's Guidelines calculations were correct.)
For those counts, the district court sentenced him to the low end
of the downwardly adjusted range (240 months), which means that
sentence is presumptively reasonable. United States v. Calderón-
Lozano, 912 F.3d 644, 648–49 (1st Cir. 2019). As required by
statute, 18 U.S.C. § 924(c)(1)(D)(ii), the court then added a
consecutive sentence of 120 months for count 4, which resulted in
a total sentence of 360 months. Serrano contends that his sentence
is nevertheless unreasonable for two reasons.
First, Serrano claims his sentence is not proportional
to the sentences received by his co-defendants because his sentence
is almost equal to Valentín's 408-month sentence and higher than
Miró's 294-month sentence. Valentín and Miró, however, each only
pleaded to two of the four counts and each received credit for
accepting responsibility. In addition, Miró only pleaded guilty
to the lesser-included, section 924(c)(1)(A)(i) offense of aiding
- 25 - and abetting the carrying of a firearm (rather than the discharge
and resulting death), which relieved him of a consecutive
mandatory-minimum sentence of ten years. Thus, Serrano's
proportionality plaint fails for lack of an apt comparator. See
United States v. González, 981 F.3d 11, 24 (1st Cir. 2020).
Second, he maintains that the district court did not
fully consider mitigating evidence and the fact that he played a
minor role in the offense. This argument is equally unavailing.
"[A] sentence is not substantively unreasonable simply because
th[e] court 'chose not to attach to certain of the mitigating
factors the significance that [the defendant] thinks they
deserved.'" United States v. González-Rodríguez, 859 F.3d 134,
140 (1st Cir. 2017) (quoting United States v. Clogston, 662 F.3d
588, 593 (1st Cir. 2011)). Here, the district court already
considered Serrano's role in the offense when it downwardly
departed in calculating Serrano's base offense level. The court
also expressly noted other mitigating circumstances, such as
Serrano's "documented history of learning disabilities," the fact
that this was his "first known offense," and that he did not
approach any victims in the commission of the crime. Serrano on
appeal, in essence, takes issue with how the court weighed these
factors, but that weighing "is left largely within a sentencing
court's discretion." Id. We are left, therefore, with a sentence
driven by a decision not to plead guilty and a statutory minimum
- 26 - consecutive sentence added onto a low-end guideline sentence
determined after a downward departure. While undoubtedly still
very long, it does not exceed the boundaries of the sentencing
court's wide discretion in giving within-guideline sentences.
Hence, we must affirm.
III.
For the foregoing reasons, we affirm.
- 27 - Appendix to Opinion
The district court gave the Pinkerton instruction as
follows:
There is another method by which you may evaluate whether to find defendant Cristian Serrano-Delgado guilty of the charge in Count TWO or Count THREE or Count FOUR of the superseding indictment. If, in light of my instructions, you find beyond a reasonable doubt that defendant Cristian Serrano-Delgado was guilty on the conspiracy count (Count ONE), then you may also, but you are not required to, find him guilty of the crime charged in Count TWO or Count THREE or Count FOUR, provided you find beyond a reasonable doubt each of the following elements: First, that someone committed the crimes charged in Count TWO or Count THREE or Count FOUR; Second, that the person you find actually committed the crimes charged in Count TWO or Count THREE or Count FOUR was a member of the conspiracy of which you found defendant Cristian Serrano-Delgado was a member; Third, that this co-conspirator committed the crimes charged in Count TWO or Count THREE or Count FOUR in furtherance of the conspiracy; Fourth, that defendant Cristian Serrano-Delgado was a member of this conspiracy at the time the crimes charged in Count TWO or Count THREE or Count FOUR was committed and had not withdrawn from it; and Fifth, that defendant Cristian Serrano-Delgado could reasonably have foreseen that one or more of
- 28 - his co-conspirators might commit one or more of the crimes charged in Count TWO or Count THREE or Count FOUR. If you find all five of these elements to exist beyond a reasonable doubt, then you may find defendant Cristian Serrano Delgado guilty of the crimes charged in Count TWO or Count THREE or Count FOUR, even though he did not personally participate in the acts constituting the crimes charged in Count TWO or Count THREE or Count FOUR, or did not have actual knowledge of them. If, however, you are not satisfied as to the existence of any one of these five elements, then you may not find defendant Cristian Serrano-Delgado guilty of the crimes charged in Count TWO or Count THREE or Count FOUR, unless the government proves beyond a reasonable doubt that he personally committed one of the substantive crimes charged in Count TWO or Count THREE or Count FOUR or aided and abetted their commission.
- 29 -