US v. Diaz-Rosado

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1010]

Case: 15-1010

Document: 00117156409

Page: 1

Date Filed: 05/18/2017

Entry ID: 6093065

United States Court of Appeals
For the First Circuit
No. 15-1010
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS YOEL DÍAZ-ROSADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Alejandra Bird López for appellant.
Francisco A. Besosa-Martínez, 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.
May 18, 2017

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KAYATTA, Circuit Judge.

Entry ID: 6093065

Luis Yoel Díaz-Rosado ("Díaz")

was convicted of carjacking under 18 U.S.C. § 2119.

On appeal, he

challenges the sufficiency of the evidence on the issue of intent,
the admission of an alleged confession, the rejection of a proposed
supplemental jury instruction, and the admission of an in-court
witness identification.

For the following reasons, we affirm.
I.

Although
sufficiency

we

Background

recite

challenge

in

the

the

facts

light

relevant

most

to

favorable

Díaz's
to

the

prosecution, we "provide a more or less neutral summary" of the
facts relevant to Díaz's remaining claims, and reserve further
exposition

of

themselves.

those

facts

for

our

analysis

of

the

claims

See United States v. Flores-Rivera, 787 F.3d 1, 9

(1st Cir. 2015).
On

March

("Irizarry")

picked

8,
up

2013,
her

Margarita

four-year-old

elementary school in Hato Rey, Puerto Rico.

Irizarry-Ramírez
granddaughter

from

As Irizarry attempted

to buckle the child into a car seat, she sensed the presence of
somebody approaching from behind.

When she turned around, she

found herself facing a man standing approximately five feet, six
inches tall, and wearing a dark-colored baseball cap, sunglasses,
and a dark-colored shirt.
The man attempted to wrest Irizarry's car key from her.
In the ensuing struggle, which we describe in greater detail below,

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the man seized the key to the car.

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Entry ID: 6093065

As this altercation was taking

place, Ronald Vázquez-Rosado ("Vázquez")--a parent at the school
--tried

to

assist

Irizarry

granddaughter from the car.

by

attempting

to

remove

her

Unable to do so, Vázquez urged

Irizarry to remove her granddaughter herself while he tried to
restrain the man, who had by that point entered the driver's seat
of the vehicle.

Irizarry succeeded, Vázquez got out of the car,

and the man drove away.
Vázquez, a former undercover police officer for the
Puerto Rico Police Department

("P.R.P.D."), subsequently gave

chase in his own vehicle and called 911.

While on the telephone

with the 911 operator and a police officer,

Vázquez spotted

Irizarry's vehicle being driven by a man with short black hair.
Vázquez relayed this information to the operator and the officer.
Noticing that Irizarry's car had suddenly stopped, and fearful
that the man might try to engage him, Vázquez drove off and
returned to the school.
A short time later, P.R.P.D. Agent William Méndez-Guzmán
("Agent Méndez") and his patrol partner spotted the stolen vehicle.
After a brief chase by car and on foot, Agent Méndez apprehended
the driver of the car, whom he later identified as Díaz.

Though

Irizarry had initially provided the police with a description of
the man who had taken her car, she was unable to identify Díaz in
a lineup conducted several hours later.

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Vázquez was similarly

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unable to identify Díaz in a photo array conducted a few days
later.
Agent Méndez testified that after arresting Díaz, he
read Díaz his Miranda rights and took him to the local precinct.
Agent Méndez further testified that once they were at the police
station, he again advised Díaz of his Miranda rights--both verbally
and in writing--and after Díaz acknowledged by signature his
receipt of a written copy of those rights, Díaz told him that "he
wanted to testify something, to state something."

Agent Méndez

testified that he "told [Díaz] that if he had anything that he
wanted to say . . . he should write it out on the reverse side of
the [Miranda form]," and that Díaz subsequently wrote and signed
a statement that (the defendant stipulated) translates to English
as follows:
I, Luis Yoel Díaz Rosado, belatedly repent the
acts I committed against the lady and someone
known to me who got into a mess that he did
not commit. Sorry.
Thoughtfully,
Luis Yoel Díaz Rosado
I took the car keys from the lady under the
influence of substances, may God bless her.
And I remember that the police hit the siren.
Thoughtfully,
Luis Yoel Díaz Rosado
Later that night, P.R.P.D. Agent Angel Fernández-Ortega
("Agent Fernández") presented the case to Puerto Rico District

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Attorney

Francelis

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Ortiz-Pagán

Date Filed: 05/18/2017

("D.A.

Ortiz").

Entry ID: 6093065

D.A.

Ortiz

declined to press charges under the Commonwealth's carjacking
statute, due to concerns that Díaz's confession was not "conscious
and intelligent" under Pueblo v. Millán Pacheco, 182 P.R. Dec. 595
(2011).

Federal prosecutors subsequently charged Díaz with one

count of carjacking under 18 U.S.C. § 2119, and a grand jury
returned an indictment on this charge on March 21, 2013.
Prior to trial, Díaz filed a motion in limine to suppress
his written confession, arguing that the confession was provided
"under the effects of controlled substances" and thus was not
voluntary. In the ensuing hearing, D.A. Ortiz testified that Agent
Fernández had informed her that Díaz had appeared to be under the
influence of drugs during the lineup, which, again, had taken place
several hours after Díaz's arrest. However, Agent Fernández denied
not only making this statement but also having the impression that
Díaz was on drugs.

Agent Méndez and another one of the arresting

officers--P.R.P.D.

Agent

Heriberto

Soto-Cruz

(“Agent

Soto”)--

similarly testified that Díaz did not appear to be under the
influence of controlled substances, and Irizarry testified that
she did not notice any of the lineup participants "acting in a
weird way physically in any way."

Though the court "f[ou]nd [D.A.

Ortiz] credible," it also determined that "the witnesses are pretty
consistent in that this gentleman was not behaving strangely."
The district court then denied Díaz's motion.

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Part way through the subsequent trial, Díaz renewed his
motion to suppress his alleged confession on the basis of videos
filmed by his brother at the precinct house several hours after
Díaz had been brought there.

In those videos, an unidentified

male voice can be heard saying that "it looks like . . . when
[Díaz] came in, he came in too . . . way too you-know-what on
drugs," and further, that "[Díaz] said . . . that he had taken
some pills."

Díaz's brother testified that that voice belonged to

a police officer who was staffing the precinct's reception desk.
The brother also testified that Díaz "had a psychiatric history"
as well as "drug problems," and that when he saw Díaz in the
station, "[Díaz] was raising his voice, he was babbling, and his
hands were on the cell bars and he had an erratic behavior."
Nevertheless, the district court denied Díaz's renewed motion to
suppress, on the ground that the videos failed to show that Díaz
was "actually being coerced."
During trial, the government called Vázquez to testify.
In the course of cross-examination, Díaz's attorney engaged in the
following exchange with Vázquez:
Q: And the person was not in that photo; you
were not able to identify any person in that
photo spread as the person whom you had
intervened with.
A: At that moment I was not convinced of the
identification of any person, but at this
moment I am convinced of the identification of
the person.

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Q: You are?

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Please tell me.

Entry ID: 6093065

Please tell me.

A: What do you want me to tell you?
Q: You said that you were now.
me.

Please tell

A: Yes, I am convinced that I can point out
who is the person who carried out the
carjacking.
Q: Who did?
A: The man who is seated over there behind the
monitor.
The judge then clarified that Vázquez was referring to Díaz.
Díaz's

attorney

did

not

ask

the

court

to

strike

Vázquez's

testimony.
On January 31, 2014, after twice denying Díaz's motions
for acquittal under Rule 29 of the Federal Rules of Criminal
Procedure, the court instructed the jury as follows:
We're almost done.
Now let me give you an
instruction about statements made by Mr. DíazRosado. And you heard evidence in this case
that Luis Yoel Díaz-Rosado made a statement in
which the government claims to you that he
admitted certain facts.
It is for you to
decide whether Luis Yoel Díaz-Rosado indeed
made that statement, based on the evidence
presented here, and, if so, how much weight
you give to it. In making these decisions,
you should consider all of the elements about
the statement including the circumstances
under which the statement may have been made
and any facts or circumstances tending to
corroborate or contradict the version of
events described in the statement.

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During the course of its deliberations, the jury sent the following
note to the district court judge:
Pueblo V Millán Pacheco [sic] law that
confeccion [sic] need to be concious [sic] and
intelligent . . . aply's [sic] to the federal
courts? Or the confeccion [sic] is acceptable
no matter in what condition.
Díaz's attorney asked the judge to respond by telling the jury
that "the Court has admitted the confession," and "it's up to you,
the jury, to decide how much or how little you're going to believe
it."

Díaz's attorney contended that "telling [the jurors they]

don't have to concern [themselves] with [Millán] would be . . . a
misstatement of the law," insofar as "[b]oth [Millán] and federal
case law state that a confession has to be given in a freely,
voluntary manner."
The judge opted to state the following:
Now, you need not concern yourselves--the
[Millán] holding. [D.A. Ortiz] mentioned it,
I did not allow her to go into details. That
is a case from the Puerto Rico Supreme Court.
Now, you need not concern yourselves with that
case. In this particular case, I, as the judge
in the case, allowed the confession in this
case to be presented into evidence, and you
have the confession before you. So, I will
give you the instruction I gave you on how to
consider that confession as evidence in this
case just like any other evidence. And I will
read it to you.
After repeating his prior instruction, the judge told the jury:
So, as I stated, I have allowed the
confession--I admitted the confession into
evidence. So, it is before you to consider.

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Before

the

jury

Page: 9

could

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be

excused,

Entry ID: 6093065

however,

Díaz's

attorney approached the bench and again "propose[d] that [the
judge] advise the jury that the confession has to be given in a
free and voluntary manner" and that "like any other piece of
evidence they are free to accept it in its totality, accept it
partially or not to accept it at all." The judge once more declined
to provide the additional instruction:
I allowed the evidence that the suppression
was given, you've made your arguments; and
they can--you know, either they find it's true
or it's a whole lie, and that's the argument
[that] you made before the jury. But I made
the
determination
in
the
suppression
conference.
The judge then excused the jury.
Shortly thereafter, the jury convicted Díaz of one count
of carjacking under 18 U.S.C. § 2119.

Díaz was subsequently

sentenced to seventy-one months of imprisonment.
II.
A.

Discussion

Sufficiency of the Evidence
We review preserved challenges to the sufficiency of the

evidence de novo.
Cir. 2009).

United States v. Pena, 586 F.3d 105, 111 (1st

However, in so doing, "we examine the evidence, both

direct and circumstantial, in the light most favorable to the
prosecution
plausible

and

decide

inferences

whether

drawn

that

therefrom,

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evidence,
would

including

allow

a

all

rational

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factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged count or crime."

United States v. Cruz-

Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008).
Díaz's

sufficiency

challenge

focuses

solely

on

the

element of intent required for a carjacking conviction under
§ 2119, and so we do as well.

The statute imposes liability upon

any individual who, "with the intent to cause death or serious
bodily harm[,] takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce from the
person

or

presence

intimidation."

of

another

18 U.S.C. § 2119.

by

force

and

violence

or

by

Díaz argues that because he did

not wield a weapon, make any "threatening gestures or verbal
threats," or otherwise manifest an intent to kill or cause serious
bodily harm, the evidence is insufficient to sustain a conviction
under the statute.
"The intent requirement of § 2119 is satisfied when the
Government proves that at the moment the defendant demanded or
took control over the driver's automobile the defendant possessed
the intent to seriously harm or kill the driver if necessary to
steal the car (or, alternatively, if unnecessary to steal the
car)."

Holloway v. United States, 526 U.S. 1, 12 (1999).

Thus,

the conditional intent to cause serious harm or death can satisfy
§ 2119.

Id. at 8.

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In our prior opinions deeming the evidence sufficient to
support a finding of intent to seriously harm another if necessary,
the defendants have, as Díaz notes, possessed items traditionally
viewed as weapons, such as guns.

See, e.g., United States v.

Melendez-Rivas, 566 F.3d 41, 45 (1st Cir. 2009); United States v.
García-Álvarez, 541 F.3d 8, 16 (1st Cir. 2008); United States v.
Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per curiam).
Nothing in the statutory language, though, requires the presence
of such an item.

Nor does common sense.

Just as one can use brute

force or a variety of items to kill or cause serious harm, one can
also use such force or items to manifest an intent to cause death
or serious harm if necessary.

See United States v. Hayworth, No.

16-5358, 2017 WL 927782, at *3 (6th Cir. Mar. 8, 2017) (unpublished
opinion) (first citing United States v. Fekete, 535 F.3d 471, 480
(6th Cir. 2008); then citing United States v. Edmond, 815 F.3d
1032, 1040 (6th Cir. 2016), vacated and remanded on other grounds
sub nom. Harper v. United States, No. 16-5461, 2017 WL 1366702
(U.S. April 17, 2017) (mem.)) (finding the evidence sufficient to
sustain a § 2119 conviction where the defendant "wrestled with"
and "jabbed" a fallen woman who was nine months pregnant).
Here, it is undisputed that Díaz used both physical force
and the car itself to effect the heist.

So the question is:

were

Díaz's actions sufficient to support a finding that Díaz actually
intended to cause serious harm if that were necessary to steal the

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car?

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While the case is close, we think that the evidence is indeed

sufficient when viewed, as it must be, in the light most favorable
to the verdict.
We have at the outset a grandmother and her grandchild,
with the latter sitting in a car seat inside a vehicle parked near
an elementary school.

A jury could certainly find that the

grandmother would not have surrendered the vehicle with the child
inside of it without offering maximum resistance.

And Díaz showed

from the get-go that he was nevertheless prepared to overcome such
resistance.

He "grab[bed]" Irizarry's hand, "struggl[ed] with

[her]," and "push[ed] and shov[ed]" her.
Irizarry's

testimony,

Díaz

"thr[e]w

Eventually, according to
[her]

onto

the

cement

sidewalk," at which point he was able to wrest loose her car key
from her keychain.1
Vázquez,

who

stated

Irizarry's testimony is supported by that of
that

he

observed

Díaz

"struggling

with

[Irizarry], manag[ing] to overcome her and . . . throw[] her, . . .
[and] slam[] her onto the floor."

The record also shows that Díaz

put Irizarry's vehicle into gear and began to move it while she
was attempting to extricate the child from the car seat and Vázquez
was "struggl[ing]" with Díaz in the front seat.
Viewed in combination and in the light most favorable to
the verdict, these facts are sufficient to allow a rational jury
As a result of the altercation, Irizarry suffered scratches,
cuts, and a hematoma on her left knee.
1

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to conclude beyond a reasonable doubt that Díaz was willing to
cause serious bodily harm in order to abscond with Irizarry's car.
We have previously indicated that the fact that a defendant "used
violence from the very beginning of the incident . . . suggest[s]
a willingness to harm the victim" within the meaning of § 2119.
United States v. Rodríguez-Adorno, 695 F.3d 32, 42 (1st Cir. 2012).
Here, Díaz not only used violence from the outset, but he also
initiated the heist in circumstances where it was virtually certain
that violence would be necessary.

Crucially, at each juncture of

the incident, Díaz did in fact employ whatever force was necessary
to accomplish his aim.

The force progressed from pushing and

pulling, to a body slam, to intentionally moving the vehicle in a
manner that, as the culminating act in an effort to separate a
desperately resistant grandmother from the car containing her
grandchild, could rationally be seen as manifesting an intent to
cause serious injury if doing so were necessary to take the car.
Because this "plausible rendition of the record" provides adequate
support for the jury's verdict, United States v. Ortiz, 966 F.2d
707, 711 (1st Cir. 1992), we conclude that the government presented
sufficient evidence to sustain Díaz's conviction under § 2119.
B.

Written Confession
Díaz

next

argues

that

the

district

court

erred

by

admitting his confession, because the government failed to carry
its burden of proving the voluntariness of that confession.

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He

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contends that because "he was under [Agent] Méndez's total and
exclusive custody and control" when he provided the statement,
"the government's inability to offer any credible affirmative
evidence"--aside
Méndez's

from

Díaz's

testimony--"warrants

signed
an

Miranda

inference

form

that

and

the

Agent

alleged

confession was involuntary."
The problem for Díaz is that the record amply supports
the conclusion that his confession did not result from police
interrogation or coercion.

If an individual simply walks into a

police station and announces that he just robbed a bank, the
Constitution does not per se bar the government from using that
announcement against the person.
436, 478 (1966).

Miranda v. Arizona, 384 U.S.

The same is true even if the individual is in

police custody when he makes such an announcement, so long as the
police do not interrogate the individual, i.e., engage in "[a]
practice that the police should know is reasonably likely to evoke
an incriminating response," Rhode Island v. Innis, 446 U.S. 291,
301 (1980), or otherwise engage in "coercive police activity,"
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Here, Officer Méndez testified that immediately after he
booked Díaz at the police station and administered verbal and
written Miranda warnings--the latter of which Díaz signed--Díaz
told him of his own volition that "he wanted to testify something,
to state something."

Díaz does not parry this testimony with any

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claim

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that

Agent

confession.

Méndez

Page: 15

coerced

Date Filed: 05/18/2017

or

improperly

Entry ID: 6093065

elicited

his

Rather, he contends that his confession was not

"voluntary" in the sense that his decision to speak was the result
of a drug-addled state.
The flaw in this argument is that in this context, a
finding that a confession is not "voluntary" requires a finding of
coercive police activity, even if only in the form of a custodial
interrogation.

Id.; see also United States v. Palmer, 203 F.3d

55, 61–62 (1st Cir. 2000).

Here, there is no evidence of such

activity, and so the district court did not err in finding the
confession admissible.
Taking a slightly different tack, Díaz points to the
general

principle

that

waivers

of

important

"knowing, intelligent, and voluntary."

rights

need

be

See, e.g., United States

v. Melendez-Santiago, 644 F.3d 54, 59 (1st Cir. 2011) (quoting
Maryland v. Shatzer, 559 U.S. 98, 104 (2010)); see also Miranda,
384 U.S. at 479.
right.

Here, though, there was no waiver of any such

The only relevant right was the Fifth Amendment right not

to be compelled to speak, and its prophylactic corollary to receive
a

Miranda

warning

interrogation.

before

being

subjected

to

custodial

Díaz makes no claim that he was interrogated while

in custody, nor does he claim that he was otherwise coerced.

And

though the Fifth Amendment confers the "right to remain silent,"
Miranda, 384 U.S. at 479, that right simply means the right not to

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be compelled by the government into offering evidence against
oneself, see id. at 478.

Absent any evidence of such compulsion

here, and given Officer Méndez's unrebutted testimony regarding
the lack of coercion, there was no need for the district court to
find any waiver, knowing or otherwise.2
This is not to say that evidence of Díaz's mental state
is irrelevant to his guilt or innocence.

The jury could well have

considered his alleged impairment as reason to give the confession
little or no weight.

See United States v. Feliz, 794 F.3d 123,

130–31 (1st Cir. 2015).

Díaz cites no authority, though, for the

mandatory exclusion of a volunteered confession solely because the
confessor was under the influence of a controlled substance at the
time of the confession.
We reject, too, Díaz's complaint that the district court
never expressly stated that the confession was voluntary.

As we

have explained, the only relevant issue of voluntariness was
whether the confession was coerced by police misconduct.

The

We reject Díaz's argument that the district court committed
error in its assignment of the burden of persuasion on the question
of voluntariness. Either Díaz waived this argument by agreeing
during the suppression hearing to assume whatever burden the
district court placed on him, or he failed to object to that
burden, thereby circumscribing our review to plain error.
See
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
And even if we were to assume arguendo that the district court
mixed up the burdens, our earlier determination that the confession
was voluntary precludes us from finding plain error. See United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
2

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court's express and supported finding that the confession was not
coerced served as a sufficient proxy for a finding of relevant
voluntariness.

See id. at 131 (citing Sims v. Georgia, 385 U.S.

538, 544 (1967)) (finding that the district court's "conclu[sion]
that the confessions were not coerced . . . was enough to provide
a sufficiently clear ruling" on the matter of voluntariness).3
We also see no basis for concluding that the district
court

delegated

voluntariness.

to

the

jury

the

See id. at 130.

"purely

legal

question"

of

To the contrary, the district

court quite properly and expressly left to the jury only the
question of how much weight to give the confession, leaving Díaz
able to argue that it was the product of his intoxicated condition
and

thus

not

credible.

This

allocation

of

responsibility was precisely what precedent calls for.

factfinding
See id. at

130–31.
C.

Jury Instruction
Díaz next contends that the district court abused its

discretion
confession.

in

responding

to

the

jury’s

question

about

the

He argues in his brief that "[t]he emphasis placed on

the judge's admission of the alleged confession could be read to
instruct the jury that they must consider the confession, allowing
We therefore need not decide whether a failure by the
district court to make an ultimate finding of voluntariness could
be prejudicial error where on de novo review we find the confession
to have been voluntary.
3

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it discretion only as to whether it would be . . . given a great
deal of weight or less weight, but not that it was free to disregard
the

alleged

confession."

He

further

contends

that

"[t]he

clarifying instruction requested by the defense--you as the jury
are entitled to accept the confession or to disregard it based on
the circumstances surrounding the written statement--would have
gone a long way to correcting this impression."
"In determining whether a district court's refusal to
give a jury instruction is reversible error, 'we look to see
whether the requested instruction was (1) correct as a matter of
substantive

law,

(2)

not

substantially

incorporated

into

the

charge as rendered, and (3) integral to an important point in the
case.'"

United States v. Berríos-Bonilla, 822 F.3d 25, 32 (1st

Cir.), cert. denied, 137 S. Ct. 206 (2016).
Even

granting

Díaz

the

argument

that

his

requested

instruction was correct as a matter of substantive law,4 we agree
with

the

government

that

the

instruction

incorporated into the charge as rendered.5

was

substantially

Díaz did not ask that

the trial judge not tell the jury that he had determined the
confession to be admissible.

The only relevant difference between

The government argues otherwise.
In its view, Díaz's
proposed instruction urges the jury to "make another independent
finding on the issue of voluntariness."
4

Díaz
"adequate."
5

concedes

that

the

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prior

jury

instruction

was

Case: 15-1010

Document: 00117156409

Díaz's

requested

Page: 19

instruction

and

Date Filed: 05/18/2017

the

district

Entry ID: 6093065

court's

given

instruction is that Díaz wanted the jurors told expressly that, in
deciding how much weight to give the confession, they could opt
for no weight at all. We think that such a possibility was manifest
in the instruction that the court reread to the jurors telling
them that they were to decide how much weight to give a confession
based, among other things, on all of the circumstances in which it
was given.

The court's reminder that the jurors should treat the

evidence like all other evidence--which they must have known they
could

disregard

if

they

thought

the

confession

weight6--reinforced this manifest possibility.

warranted

no

Accordingly, the

district court did not abuse its discretion by choosing to repeat
its prior instruction rather than using the precise language
proposed by Díaz.
D.

In-Court Identification
Finally,

Díaz's

challenge

to

Vázquez's

in-court

identification of Díaz is hobbled by his lack of objection at trial
and, in any event, defeated by his express solicitation of the
now-challenged testimony.

In fact, the record shows that Vázquez

initially manifested reluctance to actually name Díaz, and did so
only

after

Díaz's

counsel's

repeated

requests

that

Vázquez

Notably, the court had earlier instructed the jurors that
they "may believe everything a witness says or . . . part of what
a witness says or . . . zero, nothing of what a witness says."
6

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"[p]lease tell [him]" who took Irizarry's car.

Entry ID: 6093065

On this record,

Díaz cannot argue that the district court should have stricken
Vázquez's testimony, much less that it was plain error for the
court not to do so sua sponte.

See United States v. Cruz-

Feliciano, 786 F.3d 78, 89 (1st Cir. 2015) ("[A] defendant cannot
complain about the admission of testimony directly responsive to
a question posed by defense counsel.").
III.

Conclusion

For the foregoing reasons, we affirm.

-Concurring Opinion Follows-

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TORRUELLA, Circuit Judge, concurring.

Entry ID: 6093065

While I agree

with this opinion's analysis finding conditional specific intent
on the facts of this case, I write separately in order to emphasize
why a narrow reading of this opinion and the requirements for
specific intent are in order.
Congress does not have the authority to criminalize any
behavior that it desires.

Rather, its power is limited, inter

alia, by the Commerce Clause.

United States v. Lopez, 514 U.S.

549, 552-53 (1995). This limitation is in place because our system
of government is a federal one.

Matters of crime control have

traditionally been reserved to the states and for good reason.
Local understandings about crime, criminal behavior and punishment
have varied, as can be seen most recently with the upsurge in
states legalizing the use of marijuana.
The dangers inherent in overlapping jurisdiction are
evident in this case. Local police were unsuccessful in persuading
local prosecutors to bring a case against Díaz, so they appear to
have somewhat clarified their account and taken it to the U.S.
Attorney's office, who willingly took the case.

These facts

suggest the risk of abuse that this type of forum shopping affords
to the police.
For these reasons, federal criminal statutes need to be
interpreted narrowly, to ensure that the courts are not extending
federal jurisdiction beyond the point envisioned by Congress and

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intruding into realms specifically left to the Commonwealth.

Here

Congress has built at least two significant limiting features into
the elements of the offense: (1) specific intent to commit (2)
substantial injury.

I will address these in turn, taking the

latter first.
I. Substantial Injury
The carjacking statute applies to anyone who "with the
intent to cause death or serious bodily harm takes a motor vehicle
that has been transported, shipped, or received in interstate or
foreign commerce from the person or presence of another by force
and violence or by intimidation, or attempts to do so."
§ 2119.

18 U.S.C.

While there is no definition of "serious bodily harm" in

the body of the statute, there is a sentence enhancement imposed
when the perpetrator actually causes "[s]erious bodily injury,"
which

itself

is

further

defined

as

"bodily

injury

which

involves-- (A) a substantial risk of death; (B) extreme physical
pain; (C) protracted and obvious disfigurement; or (D) protracted
loss or impairment of the function of a bodily member, organ or
mental faculty."

18 U.S.C. § 1365(h)(3).

This level of harm

contemplated by the statute is significant, and requires more than
simply injuring or threatening to injure the victim.

There must

be an intent to cause something equivalent to "extreme physical
pain," "protracted and obvious disfigurement," or "protracted loss

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or impairment of the function of a bodily member, organ or mental
faculty."

Id.
II. Specific Intent
While

the

substantial

injury

requirement

is

a

significant limiting factor on the types of cases that may be
covered by this statute, the specific intent requirement also
considerably limits its scope.

It is insufficient to prove that

substantial injury is a likely or probable result, rather the
government has to prove that the defendant specifically intended
that substantial injury would occur.
be

specific

intent

to

cause

The requirement that there

serious

bodily

injury

has

been

complicated somewhat by the Supreme Court in Holloway v. United
States, 526 U.S. 1 (1999).
"[t]he

intent

requirement

There the Supreme Court held that
of

§

2119

is

satisfied

when

the

Government proves that . . . the defendant possessed the intent to
seriously harm or kill the driver if necessary to steal the car."
Id. at 12.

This has become known as conditional intent, and it

means that the government does not have to prove that the defendant
always intended, regardless of the victim's actions, to cause
serious bodily harm.

Rather, it is enough for the government to

prove that the defendant acted with the intent to cause serious
bodily harm if such harm was necessary to effect his or her aims.
Either because of the high level of intent required by
the statute or, perhaps more likely, because of the ubiquity of

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firearms, carjacking cases frequently involve firearms.

Entry ID: 6093065

Holloway,

526 U.S. at 4 (firearm pointed at driver and a threat to shoot
unless the driver handed over the car keys); United States v.
Melendez-Rivas, 566 F.3d 41, 43 (1st Cir. 2009) (gun held up to
victim's face); United States v. García-Álvarez, 541 F.3d 8, 1112 (1st Cir. 2008) (victim was assaulted by four men possessing at
least one firearm); United States v. Matos-Quiñones, 456 F.3d 14,
16 (1st Cir. 2006) (handgun pressed against victim's back); United
States v. Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per
curiam) (loaded and cocked revolver placed against the victim's
head); United States v. Evans-García, 322 F.3d 110, 115 (1st Cir.
2003) (gun placed on the victim's head and told gun was cocked).
Indeed, the original carjacking statute limited itself
to carjackings "committed by a person 'possessing a firearm.'"
Holloway, 526 U.S. at 5. However, the original statute was amended
in 1994 to omit the firearm limitation.

Id.

Thus, although

firearms may frequently still be present at carjackings, it seems
clear that Congress did not intend for the statute to only apply
to situations in which a firearm is present.
This does not mean, however, that the other limitations
present in the statute were, or should be read to have been,
watered down.

Because firearms are themselves capable of causing

serious bodily injury, courts have been quick to find specific
intent to cause the same when a firearm is present.

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The question

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posed by this case is what set of facts can amount to a specific
intent to commit serious bodily injury in the absence of a firearm?
The government points to two cases that it argues suggest
that physical threats are sufficient to prove the required intent.
In United States v. Edmond, a group of carjackers succeeded in
carjacking five vehicles and attempted carjacking a sixth.

815

F.3d 1032, 1038 (6th Cir. 2016), vacated and remanded on other
grounds sub nom. Harper v. United States, No. 16-5461, 2017 WL
1366702

(U.S.

April

17,

2017)

(mem.).

In

five

of

the

six

instances, the Sixth Circuit easily upheld the sufficiency of the
evidence

as

to

intent

because

"[t]he

intent

element

of

the

carjacking offense is satisfied at a minimum if 'a defendant
brandishes a firearm and . . . physically touches the carjacking
victim.'"

Id. at 1039 (quoting United States v. Washington, 714

F.3d 962, 968 (6th Cir. 2013)).

The attempted carjacking count

presented a closer question, however, because the jury did not
convict the defendant of the related firearm count, suggesting
that it was not necessarily convinced that there was a firearm
present at the attempted carjacking.
this count are elusive.

Id. at 1040.

The facts of

One of the defendants attempted to steal

a car from a valet service but "[t]he valet wrestled the keys away
from [the defendant]."

Id.

The Sixth Circuit held that "the jury

reasonably could have viewed [the defendant's] physical fight with
the valet as indicative of 'intent to cause death or serious bodily

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harm.'"

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Id.

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In making this argument the Sixth Circuit relied on

its own prior precedent holding that "[t]he requisite mens rea can
be shown by evidence of an intent to use a knife, a baseball bat,
brute force, or any other means that indicates an ability and
willingness to cause serious bodily harm or death if not obeyed."
United States v. Fekete, 535 F.3d 471, 480 (6th Cir. 2008).
Those courts that have not found specific intent tend to
base their holding on Holloway's finding that "an empty threat, or
intimidating bluff, . . . standing on its own, is not enough to
satisfy § 2119's specific intent element."

526 U.S. at 11.

For

example, in United States v. Bailey, the Fourth Circuit found
insufficient evidence of specific intent when the defendant jumped
in the backseat of a vehicle, pressed something cold and hard
against the neck of the driver, and then drove off in the vehicle
after the driver abandoned it in fear for his life.
95 (4th Cir. 2016).

819 F.3d 92,

The court reasoned that all of the cases

finding specific intent had evidence showing that the defendants
"threatened their victims with actual weapons, made affirmative
threatening
victims."

statements,

Id. at 97.

and/or

physically

assaulted

their

In Bailey, in contrast, the Fourth Circuit

found that by holding a hard object against the driver's neck the
defendant intended to coerce the victim, but absent evidence of an
actual weapon this could not amount to a specific intent to cause
serious harm to the victim.

Id.

Even combined with evidence of

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"generalized recklessness and desperation" the court found this
insufficient to support a finding of specific intent.

Id. at 98.

I am willing to join the majority opinion because the
facts of this case more closely align with the threats and attempts
to use brute force identified by the Sixth Circuit above, than
they do with the "empty threat" or "bluff" identified by Holloway
and the Fourth Circuit.

Moreover, while certain forms of physical

struggle, while not necessarily indicating an empty threat or bluff
may still not rise to the level of threatening serious bodily harm,
in this case, Díaz displayed a willingness to use as much physical
force as was necessary to effectuate his aims.

His actions in

physically struggling with both Mrs. Irizarry and Mr. Vázquez do
not have the appearance of being empty threats or bluffs but rather
actual attempts to use brute force to take the car.
violence

that

Díaz

actually

committed,

combined

The acts of
with

the

continuing escalation of violence as he encountered and overcame
obstacles in taking the car, all indicate that the jury had
sufficient evidence to find specific intent to cause serious bodily
injury.

This case should not be read to indicate, however, that

we are lowering the threshold required to find specific intent.
Rather, we are merely finding, consistent with the carjacking
statute, that there are numerous ways by which serious bodily
injury may be committed.

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