United States v. Velazquez-Aponte ( 2019 )

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.
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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.
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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
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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.
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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
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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
doubt.
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.
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