United States v. Torres-Perez

22 F.4th 28

• Court: Court of Appeals for the First Circuit
• Decided: December 30, 2021
• Docket: 19-2014P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2014 UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ R. TORRES-PÉREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges, and McConnell, District Judge.

Eric Alexander Vos, Federal Public Defender and Franco L. Pérez-Redondo, Assistant Federal Public Defender for Defendant, Appellant. Angela M. Miller, Attorney, Appellate Section Criminal Division, with whom W. Stephen Muldrow, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Brian C. Rabbit, Acting Assistant Attorney General, and Robert A. Zink, Acting Principal Deputy Assistant Attorney General, were on brief, for Appellee.

December 30, 2021

 Of the District of Rhode Island, sitting by designation. MCCONNELL, District Judge. José Torres-Pérez

(Mr. Torres) was convicted of unlawful possession of a machine gun

in violation of 18 U.S.C. § 922(o) after a four-day jury trial. He

was sentenced to 33 months in prison followed by three years’

supervised release. Mr. Torres argues on appeal that there was

insufficient evidence on which to convict him on the possession of

a machine gun charge and that the district court erred in admitting

photographs of various firearms and accessories found on

Mr. Torres’ cell phone. After a thorough review, we reject

Mr. Torres’ challenges and affirm the judgment below.

I. Background

We recount the facts in the light most favorable to the

jury verdict, consistent with the court record below. United States

v. Noah, 130 F.3d 490, 493 (1st Cir. 1997).

On February 13, 2018, two Puerto Rico Police Department

officers, Officers Jonathan Serrano-Martinez, and Jumariel

Carrion-Ramirez, were driving through the Maternillo Ward section

of Fajardo to serve an arrest warrant on an unrelated individual.

Their vehicle was unmarked; they were followed by a marked police

car.

Officers Serrano and Carrion saw a black pick-up truck

parked near some rooster cages. Mr. Torres’ body was halfway in on

the driver’s side of the truck. Another individual was in the

passenger seat. Officer Serrano was driving and observed Mr. Torres

- 2 - become “alert” as the unmarked and marked police cars approached.

Officer Serrano saw Mr. Torres reach into the waistband of his

shorts, pull out a firearm with an extended magazine, and throw it

into the truck’s driver’s side seat. Mr. Torres then ran away from

the truck. Officer Serrano yelled, “Firearm!” causing Officer

Carrion to take notice. Officer Carrion saw Mr. Torres run in front

of their unmarked car.

Officers Serrano and Carrion ran after Mr. Torres and

his passenger. Officer Serrano decided to end his pursuit to go

back to the truck. Both men ultimately got away when Officer

Carrion lost sight of them.

Back at the truck, Officer Serrano observed a 9mm Glock

pistol on the driver’s seat. He saw that the gun appeared to have

been altered to add a chip allowing it to fire automatically. The

extended magazine attached had twenty-two rounds of 9mm caliber

ammunition. Inside the truck, Officer Serrano found a wallet

containing Mr. Torres’ New York driver’s license, social security

card, and a cell phone as well as a receipt with Mr. Torres’ name

on it. There was also a box of .40 caliber ammunition. The truck

was impounded.

Officer Serrano returned to same area several times

looking for Mr. Torres. He located him within the next week and

brought him to the police station. Mr. Torres told police that he

borrowed the truck to buy animal feed and denied knowing about the

- 3 - Glock. He was arrested and later indicted for unlawful possession

of a machine gun.

Before the jury trial but after the court’s deadline to

file pretrial motions, the government filed a motion in limine to

admit four photographs of firearms and accessories retrieved from

Mr. Torres’ cell phone. The Glock at issue was not in any of the

photographs. The government also filed a motion to preclude

Mr. Torres from introducing during cross-examination of a federal

agent his own self-serving statement that he did not possess the

firearm. The district court denied both motions for being filed

out of time but indicated that these issues could be raised during

trial.

The government raised admission of the photographs as

evidence again before opening statements. It advocated that the

photographs were admissible to prove that Mr. Torres generally

knew about firearms and specifically knew the Glock found in the

truck had been transformed into an automatic weapon. The government

intended to introduce the photographs through the data analyst who

retrieved them from Mr. Torres’ cell phone without comment or

opinion about their significance.

Mr. Torres objected on relevance grounds because none of

the photographs were of the gun in question and it was not known

who took or sent Mr. Torres the pictures. He also objected that

they were prejudicial and confusing propensity evidence. The

- 4 - district court disagreed and allowed the government to use this

evidence at trial.

The jury was allowed to view the Glock found in the

truck. It also heard expert testimony that the homemade alterations

on the gun – the back plate on the slide had a piece attached and

was not covered by polymer and a Glock chip welded on to a piece

of steel attached to the slide – made it obvious that the Glock

was a machinegun. The expert testified that a chip like that is

added solely to convert a semi-automatic firearm into a fully

automatic machinegun. The expert confirmed his observation by

testing the Glock, pulling the trigger to observe the unloaded

gun’s slide, and then loading the gun and firing it, shooting off

three rounds with one trigger pull. He also told the jury that the

unaltered Glock could hold fifteen rounds of ammunition and the

high-capacity magazine attached to the Glock found in the truck

held up to thirty rounds.

As evidence that Mr. Torres had knowledge of guns

generally and knew what an altered Glock looked like, the

government questioned a digital analyst with the Puerto Rico Police

Department who recovered the four photographs from Mr. Torres’

cell phone. The photographs depicted a gun with an extended

magazine, a hand holding the same gun, a pistol with a drum

magazine attached beside additional extended magazines, and a

gold-plated gun next to nine bullets. The analyst testified that

- 5 - he retrieved three of the photographs from Mr. Torres’ phone’s

WhatsApp account; he could not identify from where the final

photograph came. He could tell that the photographs had been

accessed or received in the months before Mr. Torres’ arrest.

After the close of the government’s case, Mr. Torres

moved for an acquittal under Federal Rule of Criminal Procedure

29, which the district court denied. He then took the stand in

his own defense. He testified that he borrowed the truck from a

man named Lazaro who paid him to take care of and train Lazaro’s

roosters. He admitted to taking Lazaro’s truck on the date of the

incident. He left his things, including his wallet and phone, in

the truck because he did not have any pockets in his shorts. He

told the jury that he ran from police because he became scared

when he saw people with guns dressed in plain clothes, driving in

an unmarked car. He admitted that the cell phone was his but denied

taking any of the four photographs and did not know who sent them

to him. Mr. Torres told the jury that he had never had, used, or

carried a gun. At the close of the evidence, Mr. Torres again moved

for judgment of acquittal. The district court denied his motion.

The jury found Mr. Torres guilty. Mr. Torres was

ultimately sentenced to thirty-three months in prison with three

years of supervised release.

- 6 - II. Analysis

Mr. Torres contends that his conviction cannot stand

given the district court’s errors. We discuss these alleged errors

seriatim, but ultimately conclude that nothing that Mr. Torres

raises in his appeal requires reversal.

A. Rule 29

Mr. Torres’ first point of error involves the district

court’s denial of his motions for judgment of acquittal under Rule

29. Mr. Torres argues that the district court erred in denying the

acquittal motion because the government failed to present

sufficient evidence on which a jury could find that he both

possessed the gun and knew it had the same characteristics as a

machinegun.

We consider an appeal on this ground de novo. United

States v. Santos-Rivera, 726 F.3d 17, 23 (1st Cir. 2013).

Specifically,

We examine the evidence, both direct and circumstantial, in the light most favorable to the jury’s verdict. We do not assess the credibility of a witness, as that is a role reserved for the jury. Nor need we be convinced that the government succeeded in eliminating every possible theory consistent with the defendant’s innocence. Rather, we must decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.

United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009) (citations

and internal quotation marks omitted).

- 7 - 1. Count One – Possession of a Machine Gun

Mr. Torres was convicted of possessing a machinegun.

“To establish a violation of § 922(o), ‘the government must prove

that 1) the defendant possessed or transferred a machinegun 2)

with knowledge that the weapon had the characteristics to bring it

within the statutory definition of a machinegun.’” United States

v. Tanco-Baez, 942 F.3d 7, 26 (1st Cir. 2019) (quoting United

States v. Olofson, 563 F.3d 652, 659 (7th Cir. 2009). “A machine

gun is defined as ‘any weapon which shoots, is designed to shoot,

or can be readily restored to shoot, automatically more than one

shot, without manual reloading, by a single function of the

trigger.’” United States v. Nieves-Castaño, 480 F.3d 597, 599 (1st

Cir. 2007) (quoting 26 U.S.C. § 5845(b)).

To meet the knowledge requirement threshold, the

government must prove that “the defendant had knowledge of the

characteristics that brought the gun within the statutory

definition, and not that []he had knowledge that the gun was in

fact considered a machine gun under federal law.” Id. “The

requisite mens rea may be established by circumstantial evidence,”

which includes “external indications signaling the nature of the

weapon.” Id. at 601 (quoting Staples v. United States, 511 U.S.

600, 615 n.11 (1994)).

The government presented evidence that Officer Serrano

himself observed Mr. Torres remove a gun with an extended magazine

- 8 - from the waistband of his shorts and throw it into the truck next

to which he was standing. Upon Officer Serrano’s return to the

truck after his unsuccessful pursuit of Mr. Torres, he testified

that he saw the same gun on the driver’s seat. The government

presented additional evidence connecting Mr. Torres to the truck,

including that his wallet with his social security card and New

York driver’s license was found in the truck along with his cell

phone and a receipt bearing Mr. Torres’ name. A reasonable jury

could accept this testimony and conclude that Mr. Torres became

concerned that the officers would find the machinegun in his

waistband and decided to throw it through the truck’s open window

onto the driver’s seat before fleeing the scene. See United States

v. Berríos-Bonilla, 822 F.3d 25, 29 (1st Cir. 2016). In this case,

the government presented sufficient evidence from which the jury

could find that Mr. Torres possessed the firearm.

Moving on to the second element of 18 U.S.C. § 922(o),

the government presented evidence that Mr. Torres knew the firearm

had the characteristics of a machinegun. The Glock recovered from

the truck was fitted with a chip allowing it to fire automatically.

The government presented evidence that the alterations

to the Glock were obvious and visible. Officer Serrano testified

that he could tell by looking at the Glock that had been altered.

The government’s firearms expert testified that the chip was

visible just from looking at the gun so the jury could have

- 9 - inferred that Mr. Torres would have seen the chip because he

handled the Glock to and from the waistband of his shorts. His

decision to then run from police permitted the jury to infer his

consciousness of guilt.

Moreover, the jury could view the Glock for themselves

during trial and had the opportunity to decide whether the chip

was visible and obvious to Mr. Torres. The Glock had an extended

magazine to accommodate additional ammunition so the jury could

have inferred that Mr. Torres knew the Glock could fire multiple

bullets with one pull of the trigger. Taking the evidence of the

Glock’s appearance and capability to fire more than one bullet at

a time in the light most favorable to the verdict, a jury could

reasonably find beyond a reasonable doubt that Mr. Torres knew

that the Glock he removed from the waistband of his shorts and

threw into the truck’s open driver’s side window had the

characteristics of a machinegun. Tanco-Baez, 942 F.3d at 26-27

(citing Nieves-Castaño, 480 F.3d at 601 and Staples, 511 U.S. at

615 n.11).

The court finds that the record evidence supported the

verdict on the firearms count. After reviewing the evidence in the

light most compatible with the verdict and resolving all

credibility disputes in the verdict’s favor, we find that a

rational jury could conclude that Mr. Torres possessed the gun,

handled it, and therefore must have known that the Glock was

- 10 - altered to transform it into a machinegun that could fire more

than one round at a time, making a verdict that Mr. Torres was

guilty beyond a reasonable doubt reasonable. The district court

did not err in denying his motions for acquittal.

B. Admission of the Cell Phone Photographs

During the trial, the government introduced four

photographs of firearms and firearm accessories.

When the defendant’s objection to the district court’s

evidentiary ruling is properly preserved, as here, we normally

review for abuse of discretion. United States v. Velazquez-

Fontanez, 6 F.4th 205, 219 (1st Cir. 2021), cert. denied, 142 S.Ct.

500 (U.S. Nov. 15, 2021) (No. 21-5812). “A harmless evidentiary

error does not require reversal.” Id. (citing Kotteakos v. United

States, 328 U.S. 750, 765 (1946)).

On appeal, Mr. Torres argues that the photographs should

have been excluded under Rules 401 and 403 of the Federal Rules of

Evidence because they were not relevant, and their probative value

was “substantially outweighed by a danger of . . . unfair

prejudice.” Fed. R. Evid. 403. Mr. Torres objected to the admission

of the pictures at an appropriate time as unfairly prejudicial.

The government argued that the pictures were relevant evidence of

Mr. Torres’ knowledge of and familiarity with firearms and were

admissible under Rule 401.

- 11 - After carefully examining the record, we find that the

district court did not abuse its discretion in admitting the

photographs from Mr. Torres’ cell phone. The photographs were

relevant to Mr. Torres' knowledge of firearm characteristics and

high-capacity capabilities. That he had these images on his phone

and accessed them months before this incident could help the jury

find that he was familiar with firearms generally and acquainted

with “the external and readily observable” altered features of the

Glock such that the jury could infer that Mr. Torres knew the Glock

was altered to operate as a machinegun. United States v. Shaw, 670

F.3d 360, 364-65 (1st Cir. 2012).

Moreover, Mr. Torres himself testified, denying

ownership of the Glock or any firearm. “All credibility disputes

are to be resolved in the verdict’s favor, and this court need not

believe that no verdict other than a guilty verdict could sensibly

be reached but must only satisfy itself that the guilty verdict

finds support in a plausible rendition of the record.” United

States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (internal quotations

omitted); Shaw, 670 F.3d at 362. The jury heard Mr. Torres’ denials

in the face of the government’s evidence to the contrary, weighed

the witnesses’ credibility, and rendered a verdict against him

based on all the evidence. The jury’s verdict is supported by the

record.

- 12 - Not only was there no abuse of discretion, but,

critically, Mr. Torres was also not prejudiced by the district

court’s admission of the photographs. The district court balanced

the probative value of the photographs against the potential for

unfair prejudice and concluded that they were relevant and more

probative than prejudicial. We defer to the district court’s

assessment. See United States v. Smith, 292 F.3d 90, 99 (1st Cir.

2002). The government presented ample, compelling evidence that

Mr. Torres actually and constructively possessed the machinegun.

The district court’s restriction of the scope of the data analyst’s

testimony to identifying the photographs without rendering an

opinion about their weight or meaning ensured that Mr. Torres was

not unfairly prejudiced.

Because we find that the district court did not abuse

its discretion in admitting the photographs and Mr. Torres was not

prejudiced by any error in admitting them, his appeal on this

ground is rejected.

III. Conclusion

For the reasons given above, Mr. Torres’ conviction is

AFFIRMED.

- 13 -