US v. Catalan-Roman

Filing 920091023

Opinion

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var WPFootnote1 = ' David Morales-Machuca ("Morales"), an indicted co-conspirator, drove a blue Chevy Lumina, and Medina drove a two-toned motorcycle.\
'

var WPFootnote2 = '  According to Morales\'s ex-girlfriend, who testified at\
trial, Morales always carried a nickel-plated pistol.\
'

var WPFootnote3 = ' Sterling was quickly apprehended.\
'

var WPFootnote4 = ' 18 U.S.C. § 2, included in all of the aiding and abetting\
charges, makes it illegal to aid and abet the commission of a\
federal offense.\
'

var WPFootnote5 = '  18 U.S.C. § 1951, under which appellants were charged,\
criminalizes only those robberies which "obstruct[], delay[], or\
affect[]" interstate commerce. 18 U.S.C. § 1951(b)(3). See infra\
Part II(B).\
'

var WPFootnote6 = '  Under the Federal Death Penalty Act of 1994, 18 U.S.C.\
§ 3591 et seq., "[u]pon a recommendation under section 3593(e) that\
the defendant should be sentenced to death or life imprisonment\
without possibility of release, the court shall sentence the\
defendant accordingly. Otherwise, the court shall impose any\
lesser sentence that is authorized by law." 18 U.S.C. § 3594; see\
also Jones v. United States, 527 U.S. 373, 377-79 (1999)\
(describing jury\'s role in imposing death penalty pursuant to the\
Federal Death Penalty Act).\
'

var WPFootnote7 = ' Beyond asserting that Torres\'s testimony about the March 6\
incident was "highly beneficial to the government on the issues of\
premeditation and participation in the conspiracy," Catalán does\
not develop an argument that, if the jury were to disbelieve Torres\
that Catalán was involved in the March 6 attempt, the substantial\
evidence of his participation in the March 27 robbery would have\
been insufficient to convict him of the conspiracy (count one) or\
aiding and abetting the use of a firearm in furtherance of the\
conspiracy (count two). Because this argument is not developed\
"beyond a cursory mention," Cao v. Puerto Rico, 525 F.3d 112, 114\
n.2 (1st Cir. 2008), we deem it to be waived.\
'

var WPFootnote8 = ' Catalán also complains that the district court\'s order\
quashing the Bravo subpoena denied him his Sixth Amendment right\
"to have compulsory process for obtaining witnesses in his favor."\
U.S. Const. Amend. VI. This constitutional claim was not raised at\
trial, and we therefore review it for plain error. United States\
v. Rodríguez-Lozada, 558 F.3d 29, 38 (1st. Cir. 2009). Given our\
view about the minimal relevance of the tax records to the\
interstate commerce element of the Hobbs Act charges, there was no\
denial of Catalán\'s constitutional right to have compulsory process\
for obtaining witnesses in his favor. \
'

var WPFootnote9 = ' The discussion from section C.1 through section C.5 reflects\
the views of the writing judge only. My colleagues express their\
separate views in the concurrence that follows this opinion.\
'

var WPFootnote10 = ' In his brief, Catalán also claims that Agents Marrero and\
Cruz would have been able to impeach Torres\'s trial account of the\
March 6 attempted robbery. As far as can be discerned from the\
record (appellant gives us no citations other than an unidentified\
quotation, and the agents\' report is not included in the record),\
this is a misleading statement of the evidence. At no time during\
the extensive discussions and arguments over this matter during\
trial -- not even when the defendants made a proffer about Agent\
Cruz\'s testimony -- was it suggested that Marrero or Cruz had ever\
discussed the March 6 attempt with Torres. The record does\
indicate, however, that FBI agent José Rios Calzada conducted an\
interview of Torres after the March 6 attempt and that Torres\'s\
account of the attempt was different during that interview than it\
was at trial. Nonetheless, the defendants were permitted to call\
him to the stand and, for purposes of impeachment, they entered the\
302 report of the interview into evidence. See discussion infra. \
\
'

var WPFootnote11 = ' That distinction has no basis in the rules of evidence or\
the common law of impeachment. "Any form of statement is\
acceptable" for impeachment by prior inconsistent statement. 1\
McCormick on Evidence § 34 at n.5 (6th ed. 2006). Federal Rule of\
Evidence 613(b) only requires that the impeached witness be\
"afforded an opportunity to explain or deny the [prior statement]\
and the opposite party [be] afforded the opportunity to interrogate\
the witness thereon," and has no requirement that the witness have\
adopted the prior statement.\
'

var WPFootnote12 = '  The government argues that two of the five witnesses "would\
have possibly presented cumulative testimony." Cruz and Marrero\
would presumably have given similar testimony, as would Ng and\
Alvarado. See Fed. R. Evid. 403 (relevant evidence may be\
excluded, among other reasons, if it constitutes "needless\
presentation of cumulative evidence."). For reasons discussed\
below, it is not crucial that this contention be resolved. \
'

var WPFootnote13 = '  In Scheffer, the Court wrote that:\
\
              A defendant\'s right to present relevant evidence is not\
unlimited, but rather is subject to reasonable\
restrictions. A defendant\'s interest in presenting such\
evidence may thus bow to accommodate other legitimate\
interests in the criminal trial process. As a result,\
state and federal rulemakers have broad latitude under\
the Constitution to establish rules excluding evidence\
from criminal trials. Such rules do not abridge an\
accused\'s right to present a defense so long as they are\
not arbitrary or disproportionate to the purposes they\
are designed to serve. Moreover, we have found the\
exclusion of relevant evidence to be unconstitutionally\
arbitrary or disproportionate only where it has infringed\
upon a weighty interest of the accused. \
\
Id. (quotation marks and citations omitted).\
'

var WPFootnote14 = '  The government argues that "[s]ince the defendant failed\
to raise some of [the] specific claims or arguments at trial or\
below, the Court reviews the claims for plain error." The\
government\'s only specific contention in this regard is that\
Catalán did not raise the argument that the impeachment would\
expose Torres\'s bias or motive to testify, which, in the words of\
Catalán, was to "fix[] up all holes in the government\'s case,\
maximizing the chances in securing Puerto Rico\'s first death\
penalty verdict in modern times.” However, appellant argued below:\
\
              The defense gets to say to the jury . . . are these\
details things that would be left out . . . if they\
really happened? Or are these details that are being\
added on later to make it a better death penalty case? \
That\'s our right to argue . . . .\
\
Although the issue is close, appellant\'s bias and motive argument\
is treated as having been properly raised. In addition to arguing\
that it would expose bias and motive, appellant unquestionably made\
the argument below that the impeachment would call into doubt\
Torres\'s credibility generally in the sense that, for whatever\
reason, he testified at trial to inflammatory details about the\
robberies and murder that he had not mentioned during prior\
interviews.\
'

var WPFootnote15 = ' The court offered this ruling as a supplemental basis for\
exclusion of the impeachment, after making its ruling on the\
collateral fact issue. See infra Part II(c)(4). This issue is\
discussed first, however, because it is the logical antecedent of\
the ruling that the impeachment was collateral.\
'

var WPFootnote16 = '  Although it is not included in the proffer, later\
discussions among the parties make clear that the 302 also recorded\
that Torres described a second shooter who, while wounded on the\
ground, fired several shots at the victim. However, this account\
of the second shooter, presumably Catalán, did not include the\
details of concern to appellant.\
'

var WPFootnote17 = '  The government could have secured a first degree murder\
conviction without specifically charging premeditation, see 18\
U.S.C. § 1111(a), but it nonetheless included premeditation in the\
charge on count eight as an element of the charged offense. The\
judge instructed the jury that it must find both malice\
aforethought as well as premeditation in order to convict the\
defendants. Although the defendants were charged with "aiding and\
abetting" the commission of the murder in count eight, that charge\
did not lessen the mental state required to convict appellant of\
the murder charge. Even under the aiding and abetting theory of\
liability, the government was required to prove that Catalán\
"consciously shared" the principal\'s intent. United States v.\
Mangual-Corchado, 139 F.3d 34, 44 (1st Cir. 1998) (an aiding and\
abetting murder conviction "required proof beyond a reasonable\
doubt that Cirilo, before the murder occurred, consciously shared\
[the principal\'s] intention to kill Meijas and sought to ensure the\
success of the criminal enterprise . . . ."). \
'

var WPFootnote18 = '  See 1 McCormick on Evidence § 34 (6th ed. 2006): \
\
              [W]hat degree of inconsistency between the witness\'s\
testimony and his previous statement is required? . . .\
The test ought to be: Could the jury reasonably find that\
a witness who believed the truth of the facts testified\
to would be unlikely to make a prior statement of this\
tenor? . . . Instead of restricting the use of prior\
statements by a mechanical test of inconsistency, in case\
of doubt the courts should lean toward receiving such\
statements to aid in evaluating the testimony. After\
all, the pretrial statements were made when memory was\
fresher and when there was less time for the play of\
bias. Thus, they are often more trustworthy than the\
testimony.\
'

var WPFootnote19 = '   But see 1 McCormick on Evidence § 49 (6th ed. 2006)\
("Given Rule 402 [which provides that "all relevant evidence is\
admissible"], there is a powerful argument that the collateral fact\
rule was impliedly repealed by enactment of the Federal Rules. \
Under this reading of the Federal Rules, there is no rigid\
prohibition on introducing extrinsic evidence to impeach a witness\
on a collateral matter; rather, under Rule 403, the judge would\
make a practical judgment as to whether the importance of the\
witness\'s testimony and the impeachment warrants the expenditure of\
the additional trial time. However, the collateral fact rule was\
so ingrained at common law that many federal opinions continue to\
mention \'collateral\' evidence."). This circuit continues to apply\
the collateral fact rule. See, e.g., Cruz-Rodriguez, 541 F.3d at\
30; United States v. Marino, 277 F.3d 11, 24 (1st Cir. 2002).\
'

var WPFootnote20 = '  Because it is not necessary to this decision, the\
significance, if any, of the fact that Agents Ng and Alvarado would\
have testified about a robbery for which appellant was not charged\
(the November 30 robbery) is not addressed. \
'

var WPFootnote21 = '  However, this is not to suggest that testimony elicited on\
direct is always or automatically impeachable. See, e.g., Charles\
Alan Wright & Victor James Gold, 27 Fed. Prac. & Proc. Evid. § 6096\
(2d ed. 2005) ("Some older authority suggests that the collateral\
matter doctrine applies only when the testimony to be contradicted\
was elicited on cross-examination. Under this approach, when a\
witness testifies to facts during direct examination she may be\
impeached by extrinsic evidence even if those facts are collateral. \
More recent authority and commentary rejects this approach,\
reasoning that contradiction as to a trivial matter wastes time and\
confuses the issues no matter whether the contradiction occurs on\
direct or cross examination."). \
'

var WPFootnote22 = '  The desired impeachment through agents Ng and Alvarado was\
not relevant to the March 27 murder.\
'

var WPFootnote23 = ' Strangely, Catalán apparently did not seek to have any of\
the agents testify about Torres\'s out-of-court account of the March\
27 robbery and murder during the penalty phase of the trial, even\
though the court clearly took a different view of the relevance of\
the evidence in that phase of the trial. For example, it allowed\
co-defendant Medina to present previously excluded impeachment by\
extrinsic evidence through Agent Marchand during Medina\'s penalty-phase case. (Catalán\'s penalty-phase case preceded Medina\'s.)\
'

var WPFootnote24 = ' Oddly, counsel for Medina has not also argued that Medina\'s\
convictions on counts eight and nine violate double jeopardy. \
Although in exceptional circumstances we may address arguments not\
raised by counsel, see United States v. Atkinson, 297 U.S. 157, 160\
(1936), those circumstances are very rare and not present here. \
Other than a $100 special assessment imposed for count nine,\
Medina\'s conviction on count nine does not and cannot affect his\
sentence, which is life imprisonment. \
'

var WPFootnote25 = '  In his pro se supplemental brief, Medina also argues that\
his "conviction[s] and sentences on all counts must be vacated as\
the evidence was legally insufficient." However, while he presents \
detailed arguments about the insufficiency of the evidence for\
counts five, six, and eight, he does not even mention the other\
counts, let alone explain why the evidence was insufficient. Even\
affording him a more lenient standard because he is pro se on these\
claims, see, e.g., Johnson v. Rodriguez, 943 F.2d 104, 107 (1st\
Cir. 1991), this argumentation is insufficient to bring the\
sufficiency of the evidence for claims one through four and seven\
before us. Zannino, 895 F.2d at 17. \
'

var WPFootnote26 = '  18 U.S.C. § 3553(c) requires a sentencing court to "state\
in open court the reasons for its imposition of the particular\
sentence . . . ." \
'

var WPFootnote27 = 'There is some discrepancy between the testimony, both as we\
read it and in the description of it given in the briefs, as to\
just when the hand raising occurred; we have chosen the version\
that seems to be best supported, but the differences are not\
material to the outcome.\
'

var WPFootnote28 = 'Count eight of the second superseding indictment charged\
Catalán under 18 U.S.C. §§ 2, 924(j) with aiding and abetting the\
use of a firearm to cause the death of a person in the course of a\
crime of violence, specifically, a robbery. Section 924(j)(1)\
cross-references 18 U.S.C. § 1111 and provides that if the killing\
is "murder (as defined in section 1111)," the perpetrator shall "be\
punished by death or by imprisonment for any term of years or for\
life." 18 U.S.C. § 924(j)(1). The indictment also explicitly\
cross-referenced the definition of murder in section 1111.\
'

var WPFootnote29 = 'There is no indication that Catalán sought to introduce the\
supposed omissions at the penalty phase, and the judge permitted\
co-defendant Medina to introduce in the penalty phase testimony\
from Agent Carlos Marchand on the omissions in Torres\' prior\
statements about March 27.\
'

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