United States v. Velazquez-Aponte

940 F.3d 785

• Court: Court of Appeals for the First Circuit
• Decided: October 11, 2019
• Docket: 17-1965P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 17-1965 17-1966 UNITED STATES OF AMERICA,

Appellee,

v.

CARMELO ESTEBAN VELÁZQUEZ-APONTE,

Defendant, Appellant.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Lipez, and Thompson, Circuit Judges.

Laura Maldonado-Rodríguez, for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

October 11, 2019 TORRUELLA, Circuit Judge. In June 2011, Defendant-

Appellant Carmelo E. Velázquez-Aponte ("Velázquez") went on a

three-day carjacking spree. After six years of litigation,

Velázquez was ultimately convicted of eleven offenses arising from

the spree, including four counts of carjacking -- one of which

resulted in the death of a person -- four counts of possessing a

firearm in furtherance of those carjackings, two counts of

possessing a stolen firearm, and one count of possessing a firearm

as a convicted felon. Velázquez now appeals his convictions on

various grounds. After careful review, we affirm.

I. Background1

A. Factual Background

1. First Carjacking: Mieses's Ford Pickup Truck

On June 18, 2011, Velázquez shot and killed Richardson

Mieses-Pimentel ("Mieses") at a Shell Gas Station in the

municipality of Carolina, Puerto Rico, after which he took Mieses's

gun and fled in Mieses's black Ford Explorer pickup truck. The

next day, Officer Cynthia Rodríguez-Birriel ("Officer Rodríguez")

went to the scene and viewed the gas station's security footage.

Officer Rodríguez recognized the assailant in the video as

1 We summarize the relevant facts, reserving for our analysis a more detailed discussion of the facts relevant to each issue presented on appeal.

-2- Velázquez, whom she knew because she had previously investigated

him regarding state criminal charges.

2. Second Carjacking: Collazo's Mitsubishi Outlander

On June 19, 2011, while officers were investigating the

first carjacking, Velázquez arrived at another Shell Gas Station,

this time in the area of Villa Prades in the municipality of San

Juan. There, he spotted Jan Carlos Collazo ("Collazo") in the

driver's seat of a "wine-colored Outlander" SUV while a friend was

outside drying off the SUV's exterior.2 Velázquez approached the

vehicle and placed a black pistol on the back of Collazo's head

while ordering him to step out. After taking Collazo's Samsung

cellphone, Velázquez ordered Collazo to get back in and start the

car. During this exchange, another friend of Collazo's, Zaimarie

Font-Zayas ("Font"), approached the SUV unaware of the situation.

After Collazo successfully started the car, Velázquez ordered him

to get out once again. Before leaving the station with Collazo's

vehicle and cellphone, Velázquez pointed his gun at Font and

threatened to kill her if she said anything.

3. Shootout with Officers Rivera and León

The following day, June 20, 2011, Officer Daniel Joel

Rivera-Martínez ("Officer Rivera") was patrolling the area of the

2 Witnesses used "wine-colored," "burgundy," and "red" to refer to the same stolen Mitsubishi Outlander.

-3- Plaza Carolina shopping mall when a man told him that his nephew's

"red Outlander" had been stolen. Officer Rivera misunderstood

that the man's nephew had taken off with the Outlander. In a

bizarre coincidence, an Outlander of that color drove by the two

men seconds later, prompting Officer Rivera to signal the vehicle

to stop. Believing he was about to encounter the man's nephew,

Officer Rivera exited his patrol car and, while pointing his

service firearm, instructed the Outlander's driver to get out of

the vehicle. It turned out it was Velázquez driving Collazo's

vehicle. From the driver's seat, Velázquez stuck his right arm

out of the SUV and shot at Officer Rivera. Velázquez then exited

the vehicle and, while shooting, ran towards Officer Rivera, who

returned fire before losing consciousness due to bullet wounds.

Once Officer Rivera regained consciousness, he noticed that his

service revolver was missing.

After hearing over the radio that a fellow officer had

been injured at the Plaza Carolina shopping mall, Officer Edwin

León-Jiménez ("Officer León") saw a Mitsubishi Outlander matching

the description of the suspect vehicle announced over the radio

pass him by, heading in the opposite direction. Officer León, who

was on a motorcycle, followed Velázquez into a residential

development where Velázquez stopped the SUV and began shooting at

-4- him. Officer León returned fire while he took cover behind his

motorcycle.

4. Third Carjacking: Officer Fargas's Patrol Car

Officer Edgardo Fargas-Pérez ("Officer Fargas") arrived

as backup in his patrol car, within which he had a navy-blue cap

that said "POLICIA." As both officers took cover behind the patrol

car, they noticed children playing outside in a nearby summer camp.

The officers retreated from the patrol car and sought cover behind

a truck to avoid Velázquez, who was walking toward them and

shooting "without any care for [their] life or for his." Suddenly,

the shots stopped and Officer Fargas saw Velázquez board the patrol

car and flee the scene.

5. Fourth Carjacking: Gómez's White SUV

Velázquez then drove to a nearby Total Gas Station in

Carolina where Johnny Gómez-Castro ("Gómez") was fixing the tire

of his daughter's SUV, a white Mercury Mountaineer. Gómez

testified that while he was opening the door to the SUV, a man

ordered him to hand over the keys. Simultaneously, Gómez felt

something "like metal" pressed against his left side. After that,

Gómez heard the man say "[h]urry up, because I just injured a

police officer." The man then took the car keys, ripped a gold

chain bearing a cross pendant from Gómez's neck, and drove away in

the Mountaineer.

-5- 6. Velázquez's Arrest

Responding to radio reports, Officer Joel Caldero-Ríos

("Officer Caldero") saw a Mercury Mountaineer and followed it on

his motorcycle into a residential area. Cornered, on a dead-end

street, Velázquez exited the vehicle with two firearms and began

shooting at Officer Caldero, who returned fire but lost sight of

Velázquez. Arriving soon afterwards, Officer Maribel Medina-Matos

pursued Velázquez on foot and ultimately arrested him with the

help of other officers. Officers recovered Collazo's cellphone

from Velázquez's bag, along with Mieses's gun and Officer Rivera's

firearm from Velázquez's person. Inside the Mercury Mountaineer,

they found Officer Fargas's cap with the word "POLICIA" written on

it and a gold chain.

B. Procedural Background

1. Indictment

On July 6, 2011, a grand jury indicted Velázquez with

eleven counts related to the crime spree.3 Although the case was

3 Count 1 charged Velázquez with a carjacking that resulted in the death of a person, in violation of 18 U.S.C. § 2119(3). Counts 3, 5, and 7 charged Velázquez with carjacking in violation of 18 U.S.C. § 2119. Count 2 charged Velázquez with possessing and using a firearm in furtherance of the carjacking set forth in Count 1 of the Indictment, and in the process causing the death by murder of a person with the firearm in violation of 18 U.S.C. § 924(c) and 924(j)(1). Counts 4, 6, and 8 charged Velázquez with possession of a firearm in furtherance of the carjackings set forth in Counts 3, 5, and 7, respectively, in violation of 18 U.S.C. § 924(c). Count 9 charged Velázquez with being a felon in possession of a

-6- death penalty eligible, on April 24, 2014, the government informed

the court that it would not seek the death penalty.4

On December 9, 2014, defense counsel asked the court to

transfer Velázquez to the Federal Medical Center ("FMC") in Butner,

North Carolina, for a competency evaluation. The next day, the

district court granted the request and ordered Velázquez's

transfer for a forensic psychiatric or psychological examination

to determine his competency to stand trial.5

2. Forensic Mental Health Evaluation Report

On November 20, 2015, the Warden of FMC Devens

transmitted to the district court a comprehensive Forensic Mental

Health Evaluation Report rendered by a board-certified forensic

psychologist of that institution, finding that Velázquez was

competent to stand trial and sane at the time of the offenses

("Forensic Report").6 The Forensic Report described Velázquez's

firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). Finally, Counts 10 and 11 charged Velázquez with possession of a stolen firearm in violation of 18 U.S.C. § 922(j) and § 924(a)(2). 4 On February 18, 2014, the court had "expressed its concerns regarding the extensive length of time that the DOJ ha[d] taken" in determining whether to seek the death penalty. 5 The evaluation was ultimately conducted at the Federal Medical Center Devens ("FMC Devens") in Ayer, Massachusetts. 6 The Forensic Report, dated November 9, 2015, actually consisted of two parts, the first addressing Velázquez's competency to stand trial, and the second, captioned "Forensic Report Addendum,"

-7- complex mental health history. According to the Forensic Report,

the first available record of Velázquez's mental health problems

consisted of a note from his "primary care physician at Clínica

Borinquen in August 2007, indicating 'anxiety disorder' and a

prescription for the anxiolytic/benzodiazepine medication

alprazolam."

The Forensic Report further documented that while under

the custody of the Puerto Rico Department of Corrections for an

unrelated weapons offense, from March 2008 until his release in

June 2011, Velázquez was intermittently prescribed a variety of

drugs: Alprazolam (anxiety), Zyprexa (antipsychotic), Depakote

(mood stabilizer), Paxil (antidepressant), and Elavil

(antidepressant). During this time, Velázquez was initially

diagnosed only with Antisocial Personality Disorder. After he

described his history of psychiatric treatment, a diagnosis of

schizophrenia was added.

The Forensic Report next recounted that once in federal

custody and prior to his competency evaluation,7 Velázquez injured

himself on several occasions and was prescribed various

opining on the defendant's sanity at the time of the offenses. 7 According to the Forensic Report, Velázquez was released from the Bayamón Correctional Institution for "Weapons Law Violations" on June 14, 2011 and arrested for the federal offenses related to this appeal on June 20, 2011.

-8- medications based on his requests and self-reported symptoms,

including Prozac (antidepressant), Zyprexa (antipsychotic),

Risperdal (antipsychotic), Seroquel (antipsychotic), Klonopin

(anxiety), Remeron (antidepressant), Wellbutrin (antidepressant),

and Buspar (anxiety). At the time the report was written,

November 9, 2015, Velázquez had been prescribed and was taking

Wellbutrin, Buspar, Klonopin, Seroquel, and Remeron.

The Forensic Report stressed that Velázquez's "mental

health history [was] primarily based on his own self-report, as

opposed to actual clinical observation of serious mental health

symptoms." As an example, it noted that Velázquez's initial

schizophrenia diagnosis in 2008 was "[b]ased only on [Velázquez's]

self-report." The Forensic Report further noted that over time,

Velázquez had described "a more severe history of mental health

problems and treatment than is clinically documented."

Additionally, it observed that Velázquez's reported mental health

history "ha[d] often been inconsistent," and that Velázquez "ha[d]

reported a number of atypical and unusual symptoms which are rare

among genuinely mentally ill individuals."

The Forensic Report concluded that Velázquez "d[id] not

meet [the] criteria for Schizophrenia or any other Psychotic

Disorder." It determined that Velázquez did have a longstanding

-9- personality disorder,8 identifying it as Antisocial Personality

Disorder with Borderline Features ("APD"). According to the

Forensic Report, the "essential feature of [APD] is a pervasive

pattern of disregard for and violation of the rights of others

occurring since age 15."

As to Velázquez's competency to stand trial, the

Forensic Report concluded that Velázquez did not "suffer from a

mental illness which would render him mentally incompetent to the

extent he is unable to understand the nature and consequences of

the proceedings against him or to assist properly in his defense."

The Forensic Report acknowledged that Velázquez could be "very

difficult to work with," or could "refuse to work with his

attorney" altogether, but stressed that "this is volitional

behavior which is not motivated by a mental illness. The defendant

is capable of working with his attorney and assisting in his

defense if he chooses to do so."

3. Evidentiary Hearing

On April 18, 2016, the district court held an evidentiary

hearing. The court interacted with Velázquez throughout the

hearing and described him as "very articulate, very cool, very

8 According to the Forensic Report, "[a] personality disorder is an enduring pattern of experience and behavior that is pervasive and inflexible and leads to distress or impairment."

-10- reflective, with excellent language and excellent expression."

After considering Velázquez's demeanor and noting that the medical

evaluations and forensic reports "clearly indicate that

[Velázquez] has a capacity to both understand the trial and aid

[his attorney] in understanding, in helping [Velázquez] to defend

himself," the district court ruled that the case would proceed to

trial.

During the afternoon session of the evidentiary hearing,

Velázquez's counsel expressed concern that Velázquez had not been

receiving certain medications since his return to Puerto Rico from

the mainland and that the dosage of one of his medications had

been substantially decreased. Moreover, Velázquez's counsel

explained that working with Velázquez was not easy, as he was at

times uncooperative. Thus, he reiterated a request that a second

attorney be appointed to assist in Velázquez's defense, which the

district court granted.

The next day, the district court issued an order to show

cause to the warden of the Metropolitan Detention Center ("MDC")

Guaynabo (the "Warden") as to why Velázquez "had not been receiving

the medications or appropriate dosage of the medications

prescribed."9 The issue of Velázquez's medication did not arise

again until months later, on the eve of trial.

9 The record on appeal is silent as to any response from MDC

-11- 4. Severance of Count 9

At the request of the defense, the court severed Count

9, which charged Velázquez with being a felon in possession of a

firearm. Thus, the case first proceeded to trial as to Counts 1-

8, and 10-11.

5. Velázquez's Medication and Mental State During the First Trial

The topic of Velázquez's medication arose frequently

during Velázquez's first trial. On June 27, 2016, the day before

opening statements, defense counsel stated that Velázquez had

informed him that he was not being provided his medications. The

district court indicated that it would once again speak to the

Warden. It acknowledged that it believed Velázquez's treatment

was "apparently working" and that "[t]hose pills are winners. And

I wouldn't want to take the winners out of the scheme until the

trial is over."

On the first day of trial, June 28, 2016, the court

placed on the record its conversation with the Warden. It

explained that the Warden had informed it that Velázquez's

medication dosage would not be decreased, and that "on advice" of

Velázquez's psychiatrist in Florida, "the levels of the medicine

Guaynabo and as to how this was resolved.

-12- will be -- as to the principal medicine . . . the levels

[administered] on Friday."

On day three of trial, June 30, 2016, defense counsel

advised the court that Velázquez again complained he was not

receiving the proper "dosage of the drug." In response, the court

stated it would contact the Warden and request that Velázquez's

doctor appear at court with Velázquez's medical record the

following morning. The court sought Velázquez's permission to

"talk to the doctor as to the exact medicines that [were] being

provided to him." The defendant responded "Yes, you may. You can

speak to the doctor."

The following morning, Dr. López -- the Medical Director

of MDC Guaynabo -- met with the court, counsels of record, and the

defendant. She reported, as the district court characterized it,

that "all the medicines, including the medicines that [Velázquez]

alleged he hasn't been receiving, he is receiving." On the record,

Velázquez's counsel acknowledged that this statement was

consistent with what Dr. López had said in the meeting, and did

not challenge the statement. He added for the record that Dr.

López had met with the defendant, alone, to discuss his treatment,

and that because "trial, by definition, creates anxiety," Dr. López

had indicated she would increase Velázquez's medication for

anxiety.

-13- Dr. López also took the stand and reiterated under oath

that Velázquez was regularly receiving all of his medications.

When asked to specify the medications, she indicated that the

defendant was at the moment prescribed Venlafaxine (Effexor),

Bupropion (Wellbutrin), and Clonazepam (Klonopin).10 Dr. López

explained that Velázquez was goal-oriented, organized in his

thoughts, clear, and "most certainly d[id] understand what [was]

going on." She also said that "in his goal-seeking . . . this is

the type that always wants more and more and more. He will never

be satisfied, and the object is control."

The parties discussed Velázquez's medications again on

July 8, 2016, as Velázquez had apparently refused to take them.

The court opened the record that day inquiring whether Velázquez

was willing to take his medications. According to his counsel,

Velázquez was participating in his defense, but was "not satisfied

with the way that the medicines are being handled because he [was]

used to . . . more medication." Nevertheless, the court arranged

for the medication to be brought from MDC, and Velázquez took his

medication later that day during a recess. The judge noted that

10 There is no information in the record as to who prescribed those medications to Velázquez, or why three of those medications are different from the five medications -- Wellbutrin, Buspar, Klonopin, Seroquel, and Remeron -- he was prescribed at the time the Forensic Report was completed on November 9, 2015. The two medications that remained the same were Wellbutrin and Klonopin.

-14- Velázquez "looked very calm to me. I appreciate his conduct. He

seemed very cooperative with the Court."

6. First Trial Verdict

Once the government rested its case, Velázquez's counsel

moved for a judgment of acquittal under Fed. R. Crim. P. 29

regarding "the events of the Mountaineer" (Counts 7 and 8). The

court reserved judgment.

Next, Velázquez's counsel informed the court that the

defense would not present evidence. As a result, the court advised

Velázquez that he had a right to present witnesses and also to not

take the stand, to which Velázquez responded that he understood.

When the court asked Velázquez whether it was his decision to not

present witnesses, however, he responded "I don't know what to

answer." Trying to explain, the court asked Velázquez whether he

had heard the court state at the beginning of trial that he is

presumed innocent, to which Velázquez initially responded, "No,"

and then said, "Well, I remember when you told the jury."

Afterwards, Velázquez said that he had asked his attorney to

present an argument and that his counsel had responded that what

he requested "was not evidence. It was argumentation." After

Velázquez conferred with his attorneys, they informed the court

that Velázquez would not take the stand or call any witnesses.

Velázquez agreed.

-15- Velázquez's counsel also informed the court that

Velázquez was requesting to meet with him for two days before

closing arguments, a request which the court partially granted.

Eventually, the jury found Velázquez guilty as to all

counts.

7. Second Trial

The second trial concerned solely Count 9 for being a

felon in possession of a firearm. Prior to commencing the second

trial, the court held another hearing to discuss Velázquez's

competency. Based on Velázquez's demeanor and interactions during

the hearing, the court found Velázquez to be competent and alert,

without any observed mental health problems that would prevent him

from continuing to trial. In the end, the jury found Velázquez

guilty.

II. Discussion

On appeal, Velázquez asserts challenges to the

proceedings during both his first and second trials. As to the

first trial, Velázquez contends that 1) he was deprived of a fair

trial because the trial court failed to sua sponte question the

effects of medication on his competence; 2) the admission of

certain DNA evidence violated the Confrontation Clause; and 3) the

government failed to present sufficient evidence to prove Counts 7

and 8. As to the second trial, Velázquez claims that the district

-16- court 1) failed to caution the jury against premature deliberations

and 2) violated his rights under the Confrontation Clause by

allowing Officer Rodríguez's testimony.

A. Velázquez's Competency During the First Trial

Velázquez first argues that he is entitled to a new trial

because the district court failed to question the effects of the

psychiatric medications that he was taking on his competence during

trial. Although Velázquez concedes that his "mental health,

medication, evaluation and treatment were amply discussed

throughout the six years of litigation," he claims that the

district court did not continually monitor the "fluctuations" in

his medications or the potential effects of the drug combinations.

He notes that the medications given to him during trial differed

from the medication prescribed while he was at FMC Devens.

Velázquez further contends that "[o]ther than being calm

and well behaved, there are no other indications in the record

that the fluctuations in medication were monitored by the district

court." He suggests that "[p]erhaps [his] insistence in meeting

with his lawyers for two days prior to the closing arguments" is

evidence of his "misunderstanding [of] the proceedings."

Velázquez acknowledges that we review this unpreserved

claim for plain error. See United States v. Llanos-Falero, 847

F.3d 29, 33-34 (1st Cir. 2017) (reviewing unpreserved claim that

-17- district court failed to sufficiently inquire about medications

during a change-of-plea hearing under the plain error standard).

Under plain error review, the appellant bears the burden of 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. Montañez-

Quiñones, 911 F.3d 59, 63-64 (1st Cir. 2018) (quoting United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). "This standard of

review places a heavy burden on the defendant and 'tends to afford

relief . . . only for "blockbuster" errors.'" United States v.

Acevedo-Hernández, 898 F.3d 150, 167 (1st Cir. 2018) (quoting

United States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004)).

The government first argues that Velázquez waived this

argument on appeal, as he did not develop it past a skeletal sketch

and failed to argue the last two prongs of the plain error test.

In the alternative, the government argues that the district court

did not err, much less plainly err. It asserts that Velázquez did

not provide any case law supporting the proposition that the

district court had to further inquire, sua sponte, about the

effects of Velázquez's medications during trial. Moreover, it

stresses that the district court took "great pains" to ensure

Velázquez received the proper treatment and was competent to stand

-18- trial, highlighting the different instances throughout the

litigation when the court inquired and/or received information

regarding Velázquez's mental state. Finally, the government

stresses that Velázquez's behavior during trial supports the

conclusion that he was competent, and that in any case, the

district court's appraisal of a defendant's demeanor should be

afforded deference.

It is well settled that the conviction of a person who

is legally incompetent to stand trial violates due process.

United States v. Brown, 669 F.3d 10, 17 (1st Cir. 2012); see Pate

v. Robinson, 383 U.S. 375, 378 (1966). "The test for competency

[to stand trial] is whether the defendant first has sufficient

present ability to consult with counsel with a reasonable degree

of rational understanding, and second [whether he] has a rational

and factual understanding of the proceedings against him." Brown,

669 F.3d at 17; see United States v. Ahrendt, 560 F.3d 69, 74 (1st

Cir. 2009) (citing Dusky v. United States, 362 U.S. 402, 402

(1960)). "The 'understanding' required is of the essentials --

for example, the charges, basic procedure, possible defenses --

but not of legal sophistication." Robidoux v. O'Brien, 643 F.3d

334, 339 (1st Cir. 2011).

After careful consideration of the record and the

arguments, we find that Velázquez's claim fails. Velázquez argues

-19- in general terms that the court failed to appreciate or monitor

the way in which his prescription drugs affected him throughout

the trial. However, except for one instance in which he claims

he was confused and which we will discuss further below, he does

not specify any behavior that should have prompted the judge's

concern, or explain why the court's inaction constituted plain

error. Thus, his "failure to elaborate clearly how [the]

purported lapse[s] by the district court meet[] the four-part test

for plain error risks waiver." Llanos-Falero, 847 F.3d at 35.

Regardless, even if not waived, and even if the court

had erred -- issues we are not deciding -- Velázquez failed to

show that any error was clear or obvious, and thus we need not

reach the remaining two plain-error prongs.

Indeed, contrary to Velázquez's allegations, the court

took measures to assess his competence and to ensure he received

proper treatment. First, the court requested and received a

mental competency evaluation that concluded Velázquez was

competent to stand trial and capable of working with his attorney

and assisting in his defense if he chose to do so. Second, the

court held an evidentiary hearing prior to trial to discuss the

findings of the competency report, during which it had the

opportunity to interact with the defendant, and ultimately

concluded that Velázquez had the capacity to understand the trial

-20- and aid his attorneys in his defense. Moreover, throughout trial,

the court was attentive to Velázquez's demeanor and to his

complaints that he was not receiving proper medication. On

several occasions, both before and during trial, the court inquired

with the Warden and/or MDC Guaynabo's Medical Director about

Velázquez's medications, and each time, they confirmed that he was

receiving appropriate doses.11 Moreover, Dr. López, MDC Guaynabo's

Medical Director, spoke with Velázquez outside the presence of the

judge and later testified that Velázquez was "very goal-oriented,"

"organized in thoughts," and "clear." Upon the district judge's

inquiries regarding whether Velázquez understood "what's going on

here," Dr. López responded: "He most certainly does understand

what's going on. And, as I said, he's goal-oriented."12

Most importantly, Velázquez has not pointed to anything

11 As to Velázquez's earlier complaints during the evidentiary hearing held months before trial that he was not receiving adequate doses of the medications, the district court issued an order to show cause to the Warden of MDC Guaynabo, but the record is silent as to any response. 12 Dr. López explained that "goal-oriented" meant that Velázquez sought control. She stated:

[P]art of the personality traits here are wanting to control small things, such as, for example, where do I sit? It's also going to escalate. You can anticipate that in his goal-seeking, he's -- this is the type that always wants more and more and more. He will never be satisfied, and the object is control.

-21- in the record that suggests reasonable cause to believe that he

was incompetent during trial. Here, the district court had

opinions from two medical professionals to the effect that

Velázquez was competent, one rendered prior to trial (Forensic

Report), and the other during trial (MDC Guaynabo Medical

Director's testimony). See Ahrendt, 560 F.3d at 75 (noting that

a qualified mental health professional's report is an important

factor for the trial court to consider when determining

competency). Moreover, the district court had the benefit of

perceiving Velázquez's demeanor and behavior during the

evidentiary hearing and a 13-day trial.13 See United States v.

Rodríguez-León, 402 F.3d 17, 25 n.8 (1st Cir. 2005) (refusing to

"second guess" the district court's determinations as it had "the

benefit of directly perceiving [defendant's] demeanor").

Additionally, Velázquez's lucid responses to the court, 14 his

13 At the evidentiary hearing, the court noted that Velázquez was "very articulate, very cool, very reflective, with excellent language and excellent expression." On the eighth day of trial, the court observed that Velázquez "seemed very cooperative with the court." Even when the court was not describing its observations of Velázquez for the record, that does not mean it was not assessing his demeanor and behavior. See Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir. 1986)(explaining that a "defendant's demeanor and behavior in the courtroom can often be as probative on the issue of his competence as the testimony of expert witnesses"). 14 For example, on June 27, 2016, the day before trial commenced, when asked about a hypothetical plea offer, Velázquez responded "I want to go to trial." On June 30, 2016, when the court requested

-22- counsel's acknowledgement on July 8, 2016 that he was participating

in his defense,15 and even his own monitoring of his medication

regimen, all suggest that he was competent even if he was

medicated.

The only instance that Velázquez points to in support of

his claim of incompetence occurred at the close of the government's

case in chief. Velázquez asserts that he was confused when the

court inquired whether he agreed with his counsel's statement that

the defense would not present evidence, and that "[p]erhaps, [his]

insistence in meeting with his lawyers for two days prior to the

closing arguments was the result of his misunderstanding the

proceedings." As mentioned earlier, however, the defendant need

not have a legally sophisticated understanding of the proceedings,

and an initial confusion as to the difference between argumentation

and evidence, coupled with a request to meet for two days prior to

closing arguments, does not show that Velázquez lacked a reasonable

degree of rational understanding of the proceedings or that he was

that Velázquez allow it to speak with his doctors, Velázquez responded, "Yes, you may. You can speak to the doctor." At the close of the government's case, when the court asked him whether he remembered when it discussed his presumption of innocence, he responded, "Well, I remember when you told the jury." 15 On July 8, 2016, the eighth day of trial, Velázquez's attorney noted that Velázquez had "been participating in the trial well with [him]."

-23- unable to assist in his defense. See Robidoux, 643 F.3d at 339.

To the contrary, it shows that Velázquez was an engaged and active

participant. Furthermore, Velázquez has not pointed to anything

in the record that backs his assertion that he could have been

drowsy or dizzy to the point of incomprehension.

With this background, Velázquez's general assertion that

the district court's inquiries regarding the effect of his

medication were insufficient, without even the slightest factual

support for the proposition that Velázquez was incompetent during

trial, is far from sufficient to establish clear error.16

B. DNA Evidence

Velázquez next argues that forensic expert Joselyn

Carlson's ("Carlson") testimony regarding the DNA evidence

presented at trial violated his rights under the Confrontation

16 The cases Velázquez cites are distinguishable and he makes no effort to explain why, considering the distinct facts of this case, they support his contention that it was clearly erroneous for the district court to have proceeded without further discussing the effects of his medication. Both Sell v. United States, 539 U.S. 166 (2003), and Riggins v. Nevada, 504 U.S. 127 (1992), involved the forced administration of drugs to a defendant, and United States v. Parra-Ibañez, 936 F.2d 588 (1st Cir. 1991), concerned a Rule 11 guilty plea hearing, during which the court had much less time to interact with the defendant than a full-throttle trial and the defendant was "simultaneously waiv[ing] several constitutional rights, including his privilege against compulsory self- incrimination, his right to trial by jury, and his right to confront his accusers," id. at 595 (quoting McCarthy v. United States, 394 U.S. 459, 466-67 (1969)).

-24- Clause, as Carlson did not personally test any of the DNA samples

on which her testimony was based. 17 Velázquez stresses that

Carlson was asked to "identify and match [DNA] samples, which she

had not collected and tests she had not performed." Without much

explanation, he relies on Meléndez-Díaz v. Massachusetts, 557 U.S.

305 (2009). Moreover, Velázquez summarily asserts that "the

admission of the DNA evidence was crucial to the government's case"

and therefore "[a] new trial should be ordered."

Because the government urges us to review this issue

de novo, we apply the more defendant friendly standard here, even

though the claim appears to not have been preserved. Compare

United States v. Díaz, 670 F.3d 332, 344 (1st Cir. 2012) (noting

that "we consider de novo whether the strictures of the

Confrontation Clause have been met" when such claim was preserved

below (quoting United States v. Vega-Molina, 407 F.3d 511, 522

(1st Cir. 2005))), with United States v. Luciano, 414 F.3d 174,

177–78 (1st Cir. 2005) (reviewing for plain error an unpreserved

Confrontation Clause claim). "If a constitutional error has

17 Velázquez asserts this claim with regards to DNA evidence obtained from Exhibit 55, Mieses's black pistol, Exhibit 79, swabs taken from Mieses's Ford pickup truck (which Velázquez incorrectly describes as taken from the Mitsubishi Outlander), and Exhibit 80, the "POLICIA" cap. While Velázquez avers that the government set forth DNA evidence linking him to Exhibit 9, Officer Rivera's service weapon, the transcript demonstrates that even though Rivera's firearm was tested, it did not yield a DNA profile.

-25- occurred, we must order a new trial unless the government has shown

that any error was 'harmless' beyond a reasonable doubt." United

States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007).

The government contends that Velázquez waived his

Confrontation Clause claim on appeal due to lack of developed

argumentation, and that regardless, Meléndez-Díaz is

distinguishable from this case. Moreover, it references Williams

v. Illinois, 567 U.S. 50 (2012), arguing that because Williams was

a plurality opinion, its precise mandate and applicability to

Velázquez's case is unclear. Alternatively, and most forcefully,

the government asserts that any potential error in allowing Carlson

to testify about the DNA profiles was harmless beyond a reasonable

doubt, as the DNA evidence was cumulative, not conclusive.

We agree with the government's last point, and thus need

not delve into the intricacies of the relationship between

Carlson's DNA-related expert testimony and the Confrontation

Clause. In this case, there is overwhelming evidence linking

Velázquez to the crimes for which he was convicted. Except for

Mieses, who was killed by Velázquez, and Gómez, all witnesses that

were victims or responding officers identified Velázquez in open

court. Moreover, Mieses's carjacking was caught on the Shell gas

station security footage, from which Officer Rodríguez identified

Velázquez. Furthermore, at the time of his arrest, officers

-26- recovered Mieses's gun and Officer Rivera's service firearm from

Velázquez's waistband, Collazo's cellphone from Velázquez's bag,

and Officer Fargas's "POLICIA" cap and Gómez's gold chain from the

Mercury Mountaineer. Additionally, Officer Fargas testified that

he had his "POLICIA" cap in his patrol car when Velázquez took it,

and Officer Caldero testified that he saw Velázquez get out of the

Mercury Mountaineer at Villa Fontana, where Velázquez was later

arrested. Finally, ballistic expert Erich Smith, an FBI forensic

scientist and firearms and tool marks examiner, testified that

Mieses's gun was used during the shootouts with Officers Rivera

and León near the Plaza Carolina shopping mall, Officers León and

Fargas near the summer camp, and Officer Caldero near Villa

Fontana.

We need not go on. In the context of all the evidence

presented at trial, it is clear that Carlson's testimony regarding

the DNA evidence found on Mieses's firearm, his Ford pickup truck,

and Fargas's hat was "at best cumulative of other compelling proof

that [the defendant] committed the charged [crimes]." Earle, 488

F.3d at 546 (quoting United States v. Bartelho, 129 F.3d 663, 670

(1st Cir. 1997)). Thus, any error was harmless beyond a reasonable

doubt.

C. Sufficiency of the Evidence for Counts 7 and 8

Velázquez next argues that the government did not

-27- present sufficient evidence to prove Count 7 charging him with

carjacking the Mercury Mountaineer and Count 8 charging him with

possessing a firearm in furtherance of that carjacking.

The elements of a carjacking offense under 18 U.S.C.

§ 2119(1) are the following: (1) the taking or attempted taking

from the person or presence of another; (2) of a motor vehicle

that has been transported, shipped, or received in interstate or

foreign commerce; (3) through the use of force, violence, or

intimidation; (4) with the intent to cause death or serious bodily

harm. United States v. García-Álvarez, 541 F.3d 8, 16 (1st Cir.

2008). The government bears the burden of proving all elements.

Id. Additionally, Count 8 required the government to prove that

Velázquez possessed a firearm in furtherance of a crime of

violence, in this case, carjacking. 18 U.S.C. § 924(c)(1)(A).

Velázquez only asserts a lack of evidence regarding the

first element of a carjacking offense, the taking of a motor

vehicle. In support, he asserts four arguments: (1) that the

victim, Gómez, did not identify him as the assailant; (2) that

Gómez's initial testimony labeled the stolen SUV as a white Ford

SUV, rather than a white Mercury Mountaineer; (3) that the

government did not connect the stolen Mercury Mountaineer to Gómez,

as there is no video from the gas station showing the taking or

another witness's testimony to that effect; and finally, (4) that

-28- Officer Fargas never testified his "POLICIA" cap was missing.

As to Count 8, Velázquez argues that Gómez only testified

that he felt "something like metal" touching his side during the

alleged carjacking rather than specifically seeing a weapon at the

time of the taking. Velázquez insists that the item Gómez felt

could have been any number of things, not necessarily a gun. Based

on these points, Velázquez claims that the court should reverse

the conviction on Counts 7 and 8 because no rational jury could

have found the government proved each element beyond a reasonable

The government does not contest Velázquez's assertion

that he preserved this challenge to the sufficiency of the

evidence, so we review the court's Rule 29 determination de novo.

See United States v. Díaz-Rosado, 857 F.3d 116, 120 (1st Cir.

2017). In doing so, "we examine the evidence, both direct and

circumstantial, in the light most favorable to the prosecution and

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

count or crime." Id. (quoting United States v. Cruz-Díaz, 550

F.3d 169, 172 n.3 (1st Cir. 2008)).

Because Velázquez focused only on the first element

required to prove a carjacking under 18 U.S.C. § 2119(1), we do so

-29- here as well. The government presented overwhelming evidence that

Velázquez took the white Mercury Mountaineer from Gómez and that

he possessed a firearm in furtherance of that carjacking.

Velázquez is correct in that Gómez never identified his assailant

nor the firearm used in the offense. However, he ignores the

plethora of circumstantial evidence linking him to the taking of

Gómez's Mercury Mountaineer at gun point.

First, a rational jury could have found that Velázquez's

actions during the carjacking, along with the evidence found on

him at the moment of his arrest, show beyond a reasonable doubt

that he took Gómez's vehicle while possessing a firearm. Gómez

testified that a man dressed in black approached him, placed a

metal object on his side, told him to hurry up and give him the

keys to the SUV because he had just injured a police officer, and

ripped a gold chain from his neck before leaving with the vehicle.

Because the jury heard evidence that Velázquez had shot and injured

Officer Rivera earlier that day, Velázquez's own statements to

Gómez support an inference that he was the one who took the Mercury

Mountaineer.

Additionally, Officer Caldero testified that he saw

Velázquez get out of the Mercury Mountaineer at Villa Fontana,

where Velázquez was later arrested. Officers found a "POLICIA"

cap inside that Mercury Mountaineer, linking it to Velázquez's

-30- carjacking of Officer Fargas's police cruiser, which Velázquez

left near the Total gas station where the Mercury Mountaineer was

carjacked. Officers also found Gómez's gold chain inside the

Mountaineer, linking Velázquez to Gómez and the taking of his

Mountaineer once again. Moreover, after the arrest, police found

two stolen firearms in Velázquez's possession, allowing the jury

to conclude that the metal object Gómez felt was a gun.

Furthermore, the government presented evidence that

Velázquez carjacked two other people in a similar manner, including

with threats and a firearm. The surveillance video from Mieses's

carjacking shows Velázquez approached Mieses with a firearm and

shot him prior to taking the car. As to the carjacking of

Collazo's Mitsubishi Outlander, Collazo explained that Velázquez

approached him from behind, held a weapon to the back of his head

and threatened death if he did not comply. He saw the gun and was

able to describe it. See United States v. Cruz-Rivera, 904 F.3d

63, 69 (1st Cir. 2018) (explaining that "[g]iven that the victims

of the other two carjackings each also testified . . . that the

defendant had used a gun in committing the carjackings that they

endured, a jury could have inferred from the victims' testimony in

combination that [the defendant] had access to multiple 'firearms'

and had used one in committing each of these crimes"). Both

Collazo and Font, his friend, testified that Velázquez was dressed

-31- in black, just like the man that took Gómez's Mercury Mountaineer.

Finally, Gómez's initial identification of the stolen

vehicle as a Ford SUV, juxtaposed to his later identification of

the car as the Mercury Mountaineer in Exhibits 37 and 38, required

a credibility determination from the jury. United States v.

Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008). Gómez was given a

chance to clarify his statement and identify the correct car.

When he did just that, a jury could have found him believable and

their decision to do so should not be disturbed.

Considering all the evidence and the reasonable

inferences derived therefrom in the light most favorable to the

verdict, we conclude that a reasonable jury could have found beyond

a reasonable doubt that Velázquez took the Mercury Mountaineer

from Gómez while using a firearm, thus sufficiently establishing

the challenged elements of Counts 7 and 8.

D. Challenged Jury Instruction

As to the second trial for the severed Count 9, Velázquez

first contends that the court "failed to caution the jury against

premature deliberations."

On March 6, 2017, after empaneling the jury for the

second trial, the court provided preliminary instructions. As to

premature deliberations, the court instructed:

Until this case is submitted to you for your deliberations, you must not discuss this case with

-32- anyone or remain within hearing of anyone discussing it. . . . After this case has been submitted to you for your deliberations, you must discuss this case only in the jury room when all of you are present.

At the end of the day, the court reiterated that the jury should

"not discuss this case with anyone." Before a lunch recess on the

second day of trial, the court stated: "Remember my instructions

not to discuss it with anyone." And on the close of the third day

of trial, after the government had rested its case, the court

specified: "You have not heard yet the closing arguments nor the

instructions of the [c]ourt, so you cannot talk to anybody or talk

among yourselves about the case."

Velázquez concedes that the court did impart

instructions warning the jury against premature deliberations, but

asserts they were insufficient because the court failed to

specifically tell the jurors "to refrain from discussing the case

amongst themselves[] until after the end of the government's case

in chief." Velázquez further admits that he did not object to the

instructions below, so we should review his argument on appeal for

plain error. See United States v. Henry, 848 F.3d 1, 13–14 (1st

Cir. 2017) ("[T]he plain error hurdle, high in all events, nowhere

looms larger than in the context of alleged instructional errors."

(quoting United States v. Meadows, 571 F.3d 131, 145 (1st Cir.

2009))). Yet Velázquez does not fully develop his argument

regarding the last two prongs of the plain error standard. As to

-33- the third element -- that the alleged error affected his

substantial rights -- Velázquez simply asserts that the district

court's omission, in and of itself, should "amount to a showing of

individual prejudice, not only because the instruction was not

given but because the instruction should have been given in

accordance to the Pattern Criminal Jury Instructions for the

District Courts of the First Circuit." Moreover, Velázquez's

briefs are entirely silent as to the fourth prong of plain error

review -- that any alleged error "seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."

Montañez-Quiñones, 911 F.3d at 63-64 (quoting Duarte, 246 F.3d at

60).

Thus, we need not decide whether the district court erred

or whether the alleged error was clear or obvious because, even

assuming that Velázquez meets the first two prongs, his challenge

fails under the last two prongs of the plain error standard.

First, while Velázquez argues that failing to use this circuit's

pattern jury instruction should itself amount to a showing that

his substantial rights were affected, our precedent discredits his

argument. We have noted that "although pattern instructions are

'often helpful,' their use is 'precatory, not mandatory.'" United

States v. Jadlowe, 628 F.3d 1, 17 n.29 (1st Cir. 2010) (quoting

United States v. Urciuoli, 513 F.3d 290, 299 n.7 (1st Cir. 2008)

-34- and United States v. Tse, 375 F.3d 148, 157 (1st Cir. 2004));

see also United States v. Gómez, 255 F.3d 31, 39 n.7 (1st Cir.

2001) (emphasizing district court's wide discretion in jury

instruction language). Moreover, to establish that his substantial

rights were affected, we have reiterated that Velázquez had to

show "a reasonable probability that, but for [the error claimed],

the result of the proceeding would have been different." United

States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006)

(quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir.

2005) (en banc)). Because Velázquez has not put forth any fact

or argument that would support such a finding, he has failed to

establish the third prong of plain error review.

In any event, Velázquez waived his claim of error by

failing to address the fourth prong of plain error review -- that

the alleged error seriously impaired the fairness of the judicial

proceedings. See United States v. Severino-Pacheco, 911 F.3d 14,

20 (1st Cir. 2018) (noting that "failure to attempt to meet the

four-part burden under plain error review constitutes waiver"

(relying on United States v. Pabón, 819 F.3d 26, 33–34 (1st Cir.

2016))).

E. Officer Rodríguez's Testimony as to the Severed Count 9

Velázquez's final claim of error is that Officer

Rodríguez's testimony in the second trial violated his rights under

-35- the Confrontation Clause. To place this claim in context, we

provide some background. Severed Count 9 charged Velázquez with

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) and § 924(a)(2). To prove this charge, the government

had to establish that: (1) Velázquez was previously convicted of

an offense punishable by more than one year in prison (meaning

that he was a "felon"); (2) he knowingly possessed a firearm in or

affecting interstate commerce, United States v. Wight, 968 F.2d

1393, 1397 (1st Cir. 1992); and (3) he knew he was a felon, Rehaif

v. United States, 139 S. Ct. 2191, 2194 (2019).

As to the first element, the government submitted a

certified copy of a prior Puerto Rico court judgment reflecting

that Velázquez was convicted of a felony in state court.18 This

was a self-authenticating document pursuant to Rule 902(1)(A) of

the Federal Rules of Evidence. The government read portions of

it to the jury, including the caption, which specifically mentioned

Carmelo Velázquez-Aponte, and a paragraph that stated, "Having

considered the allegation, the Court finds the accused guilty of

the crimes of Article 5.04, pneumatic weapon, and condemns him to

punishment of two years in jail without costs." The government

further noted that the document contained Velázquez's date and

18 People of Puerto Rico v. Carmelo Velázquez-Aponte.

-36- place of birth, sex, Social Security number, and address. In

addition, Officer Rodríguez testified that the Carmelo Velázquez-

Aponte named in the judgment was the Velázquez on trial.19 Defense

counsel objected to the testimony on the grounds of inadmissible

hearsay, but the court overruled the objection because Officer

Rodríguez had known Velázquez in the context of previous state

court proceedings.

While Velázquez suggests another standard of review, we

review for plain error because he did not object on Confrontation

Clause grounds below, instead raising a hearsay objection. See

Luciano, 414 F.3d at 178 (reviewing for plain error because

defendant "did not raise this Confrontation Clause or Crawford-

type claim in the proceedings below," rather the "defense

objections were framed as hearsay and reliability objections").

Even if Velázquez had made some attempt at developed

argumentation, and even if he had established the first two prongs

of the plain error test, the third prong would be unsurmountable

for him. As discussed earlier, Velázquez would have to show that

his substantial rights were affected in that "but for [the error

claimed], the result of the proceeding would have been different."

19 The government explained that it was presenting this testimony because it did not "want [Velázquez] arguing in closing that it could be some other Carmelo Velázquez-Aponte."

-37- Turbides-Leonardo, 468 F.3d at 39 (quoting Padilla, 415 F.3d at

221). Yet here, the government established that Velázquez was a

felon via a self-authenticating official state court document,

which contained Velázquez's identifying information and which

Velázquez did not challenge in any way. Thus, there would have

been no reason for the jury to second-guess the contents of an

official state court conviction even absent Officer Rodríguez's

testimony. In the end, Velázquez's claim cannot prevail.

III. Conclusion

For the foregoing reasons, we affirm Velázquez's

convictions.

Affirmed.

-38-