United States v. Mendez Otero ( 2000 )

United States Court of Appeals
For the First Circuit
No. 99-1805
UNITED STATES OF AMERICA,
Appellee,
v.
HANSON WILSON MILLAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvator E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Rafael F. Castro Lang, by Appointment of the Court, for
appellant.
Antonio R. Bazan, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant U.S. Attorney, and Camille Velez-Rive, Assistant U.S.
Attorney, were on brief for the appellee.
October 27, 2000
COFFIN, Senior Circuit Judge. Defendant-appellant
Hanson Wilson Millan appeals from convictions for carjacking
that resulted in death, in violation of 18 U.S.C. § 2119(3), and
for using a firearm during the commission of the offense, in
violation of 18 U.S.C. § 924(c). Appellant claims error in
several evidentiary rulings at trial and contends that the
prosecutor made improper remarks during his closing argument.
We affirm.
I. BACKGROUND
The facts as the jury could have found them are as
follows. In the wee hours of April 5, 1996, appellant was
riding in a red Mitsubishi driven by Jose Otero Mendez in
Carolina, Puerto Rico. Also along for the ride were Javier
Betancourt, his girlfriend, Jomary Aleman Gonzalez, and Geovani
Castro Ayala. When a white Nissan with alloy wheels passed by,
Otero followed it, intending to swipe the coveted wheels. The
Nissan was driven by Juan Manuel Gonzalez Encarnacion
("Gonzalez"), an off-duty police officer who was on his way to
his girlfriend's house.
As Gonzalez parked on the street in front of the house,
Otero pulled up alongside. Appellant and Betancourt, each armed
with handguns, got out and approached Gonzalez' car. Shots were
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fired. Both Gonzalez and Betancourt were hit and died as a
result of their injuries.
At trial it was unclear who fired first. There was
testimony of an initial exchange of bullets between Betancourt
and Gonzalez through the driver's side window of Gonzalez' car.
Appellant testified that upon hearing gunshots, he fired through
the rear window at Gonzalez, who, according to autopsy reports,
died instantly.
Betancourt, who had been shot in the abdomen, was
assisted into Otero's car and dropped off at the Carolina
hospital along with Aleman and Castro. At the hospital, Aleman
and Castro, both juveniles, lied to authorities about how
Betancourt was shot, in an attempt to cover up the crime. After
Betancourt died, Aleman and Castro told police what actually
happened, and both subsequently pleaded guilty to their
accessory roles in the offense and agreed to cooperate and
testify. Appellant and Otero were indicted together, but their
cases were severed before trial. Appellant was found guilty and
sentenced to imprisonment for life. Pertinent portions of
appellant's trial will be recounted in context as part of our
analysis of his arguments on appeal.
Appellant asserts three claims of error. First, he
argues that the court erred in refusing to admit a portion of
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the government's written version of facts that was attached to
Aleman's plea agreement, which, he contends, would have shown
that Gonzalez fired first. Second, appellant claims that the
court erred in refusing to permit hearsay testimony about
illegal firearms dealing involving Gonzalez, which would have
helped refute the government's theory that the shooting occurred
during a carjacking. Third, appellant takes exception to the
prosecutor's remarks during closing argument. We address each
of these arguments in turn.
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II. ANALYSIS
A. Refusal to Admit Excerpt from Version of Facts
Appended to Aleman's plea agreement was a three-page
statement of facts drafted by the government and signed by the
prosecutor and Aleman. During Aleman's direct testimony at
trial, the government sought to introduce the plea agreement
along with the version of facts, but defense counsel objected.
At a bench conference, counsel stated that he had no objection
to the plea agreement, only to the version of facts. The
prosecutor agreed to excise the version of facts and the plea
agreement was admitted by itself.
At the close of the defendant's case, his attorney
attempted to reintroduce a portion of the version of facts he
had successfully barred earlier. He argued that this part of
the version of facts clarified who fired first, an issue
disputed at trial. After a lengthy sidebar conference, the
court was persuaded to allow counsel to introduce the version of
facts notwithstanding his earlier objection, but ruled that the
whole version had to come in, not just the excerpt favorable to
his position. In its consideration of the issue, the district
court apparently viewed the government's four-paragraph
narrative as an integrated whole, the piecemeal introduction of
which would have unfairly distorted the government's version of
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events. Counsel declined the invitation to admit the entire
version and now claims error in that ruling.
Under the doctrine of completeness codified in Federal
Rule of Evidence 1061, a party wishing to introduce only a
portion of a recorded statement may be precluded from doing so
where partial disclosure out of context would result in
unfairness to the other party. See United States v. Awon, 135
F.3d 96, 101 (1st Cir. 1998) ("The doctrine of completeness . .
. operates to ensure fairness where a misunderstanding or
distortion created by the other party can only be averted by the
introduction of the full text of the out-of-court statement.").
The rule permits "a party against whom a fragmentary statement
is introduced [to] demand that the rest of the statement (or so
much thereof as is appropriate) be admitted into evidence in
order to place the excerpt in context." United States v.
Houlihan, 92 F.3d 1271, 1283 (1st Cir. 1996). We review Rule
106 completeness determinations for abuse of discretion. See
United States v. Thuna, 786 F.2d 437, 441 n.7 (1st Cir. 1986)
("application of rule 106 is left to the sound discretion of the
district court"); United States v. Conley, 186 F.3d 7, 22 (1st
1 "When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it." Fed. R. Evid. 106.
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Cir. 1999) ("In making determinations as to the completeness of
proffered statements, the district court's judgment is entitled
to great respect."); accord Houlihan, 92 F.3d at 1283.
After reviewing the version of facts, we find no abuse
of discretion in the court's refusal to admit less than the
whole document. "[T]he threshold question under Rule 106 is
always one of defining the entirety: that is, if Rule 106
applies, what is it that must be complete?" United States v.
Boylan, 898 F.2d 230, 256 (1st Cir. 1990). Here, the entirety
is easily defined as the government's version of facts. That
document bore its own caption and was signed and dated
separately from the plea agreement to which it was appended.
Early on in the trial, the parties implicitly agreed that the
version stood on its own when it was excised from the plea
agreement introduced into evidence by the government.
Having determined the version of facts document to be
"a reasonable unit of wholeness," we next consider whether the
excerpt would "neglect[] some revealing context of the whole."
Id. at 257. Although appellant did not indicate on the record
which portion he wanted admitted, he points us in his brief to
three sentences that, he argues, would have been helpful to his
case:
As Javier Betancourt approached the driver's
side of the automobile that they intended to
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carjack, its driver, Juan M. Gonzalez
Encarnacion, an off duty state policeman,
fired his revolver at him. Betancourt was
hit in the stomach area but still managed to
fire several shots that hit Gonzalez
Encarnacion. Meanwhile, Hanson Wilson
Millan fired several shots at Gonzalez
through the rear window of the car.
This excerpt, plucked mid-paragraph, tells only part of the
story portrayed in the government's version of facts. That
document also describes, in the government's voice, events
leading up to the shooting, including a passage just prior to
the excerpt stating that appellant and Betancourt "dismounted
the car with firearms in their hands." That appellant
approached Gonzalez' car with revolver at the ready bears on the
possibility that appellant fired his shots before, or at the
same time as, Gonzalez did. Shorn from the context of the
entire narrative, the excerpt may have distorted the jury's
perception of the government's written version of events.
Requiring admission of the entire document was therefore within
the district court's discretion.
Furthermore, any error in refusing to admit the excerpt
was harmless. Even if the excerpt had been admitted, it would
not have been particularly helpful to appellant's case.
Contrary to appellant's assertion, the excerpt does not
unequivocally settle the issue of who shot first. Though the
narrative order of the quoted language may suggest that Gonzalez
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fired first, the statement, "[m]eanwhile, [appellant] fired
several shots at Gonzalez," could mean that appellant was the
first to fire.
The excerpt was also cumulative of appellant's trial
testimony. On the stand, appellant admitted to firing several
times into the back of Gonzalez' car after seeing Betancourt get
hit. He testified that he did not start shooting until after
Betancourt had started and that Betancourt returned fire only
after being shot. Although the selected excerpt may have on
balance corroborated appellant's testimony, excluding it did not
preclude appellant from presenting his theory of the case.
Nevertheless, even if the jury had been permitted to
consider the excerpt from the government's version of facts and,
in combination with appellant's testimony, drew the inference
that appellant did not initiate gunfire, it is unclear how that
fact might have tended to exonerate him. Establishing that
Gonzalez fired first, or even that appellant did not fire first,
would have done little to undermine the mens rea element of the
offense. The carjacking statute attaches criminal liability to
anyone who, with the intent to cause death or serious bodily
harm, attempts to take a motor vehicle by force or intimidation.
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18 U.S.C. § 2119 (1994).2 Violations of the carjacking statute
do not turn on who initiated the altercation. See Holloway v.
United States, 526 U.S. 1, 11-12 (1999) (holding that mens rea
element of § 2119 is satisfied by conditional intent to cause
death or serious bodily harm if necessary to hijack the car);
see also United States v. Gandia-Maysonet, No. 98-1144, 2000 WL
1273845, at *3 (1st Cir. Sept. 13, 2000).
The district court determined that fairness to the
government required the admission of the whole version of facts.
On this record, we are not prepared to hold that determination
a harmful abuse of discretion.
B. Refusal to Admit Testimony of Illegal Firearms Dealing
Appellant's second claim of error is that the court
wrongfully refused to admit testimony of illegal firearms
dealing involving Betancourt and Gonzalez. At trial, appellant
attempted to show that the shooting did not occur during a
carjacking, but was motivated by a dispute over money owed by
2 Section 2119 states, in pertinent part:
Whoever, 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, shall . . .
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or
both, or sentenced to death.
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Gonzalez to Betancourt as part of their gun dealing.
Appellant's attempts to present this alternate theory to the
jury were thwarted by two of the court's evidentiary rulings.
The first occurred when, during the defendant's direct
testimony, a hearsay objection was sustained that prevented
appellant from testifying to the substance of a conversation he
heard between Betancourt and Gonzalez about trading illicit
firearms. The second ruling barred Otero from testifying that
he fled from police because he feared reprisal for knowing that
Gonzalez -- a police officer -- was engaged in illicit activity.
We review these evidentiary rulings for abuse of discretion.
See United States v. Mojica-Baez, Nos. 98-2349 to 2353, 2000 WL
1211013, at *5 (1st Cir. Aug. 30, 2000).
1. Appellant's Proffered Testimony Was
Inadmissible.
Appellant testified on direct examination that he first
met Gonzalez in mid-March 1996 when he was driving with
Betancourt and they pulled up next to Gonzalez' car in the
parking lot of a Burger King. As appellant began to relate what
was said between Betancourt and Gonzalez, the government
objected strenuously, arguing that the admission of the hearsay
statements would be particularly unfair because both declarants
were dead.
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At sidebar, counsel proffered that the conversation was
about weapons, but that he was not offering it for the truth of
the matter asserted. The testimony was admissible, he argued,
to show defendant's awareness of firearms dealing. He
apparently wanted to bolster appellant's later testimony that
his understanding of the purpose of the fatal confrontation with
Gonzalez was to collect a debt. However, there was no proffer
that the excluded conversation shed any light on the financial
dealings of Betancourt and Gonzalez.
At the conclusion of the colloquy on this point, the
court gave counsel the opportunity to identify another basis for
admission, which we discuss below. Assuming the earlier non-
hearsay argument was preserved, we have no difficulty in holding
harmless any error in refusing to admit the conversation.
Appellant was permitted to testify later as to his state of
mind, and the proffered conversation lacking specifics would not
have added significantly to appellant's case.
Once it became clear that appellant was not going to
prevail on his non-hearsay argument, defense counsel proposed to
have the firearms statements admitted under Federal Rule of
Evidence 804(b)(3)3, which permits the introduction of hearsay
3 The rule defines "statement against interest" in part
as "[a] statement which . . . at the time of its making . . . so
far tended to subject the declarant to civil or criminal
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testimony where a declarant unavailable to testify had exposed
himself to criminal liability in the out-of-court statement.
See Williamson v. United States, 512 U.S. 594, 599 (1994) ("Rule
804(b)(3) is founded on the commonsense notion that reasonable
people, even reasonable people who are not especially honest,
tend not to make self-inculpatory statements unless they believe
them to be true."). Whenever offered to exculpate the accused,
such statements must be corroborated to "clearly indicate
the[ir] trustworthiness." Fed. R. Evid. 804(b)(3); see also
United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997) ("the
requirement for corroboration is not unrealistically severe but
does go beyond minimal corroboration") (internal quotation marks
omitted). District courts have "'a substantial degree of
discretion'" in determining whether a hearsay statement against
penal interest offered to acquit the accused has been
sufficiently corroborated to be admissible. Mackey, 117 F.3d at
29 (quoting United States v. Barrett, 539 F.2d 244, 253 (1st
Cir. 1976)).
liability . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it
to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement." Fed. R. Evid. 804(b)(3).
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The district court apparently assumed without deciding
that the statements of Betancourt and Gonzalez were against
their respective penal interests, but ruled appellant's
testimony about the conversation inadmissible because its
trustworthiness had not been sufficiently corroborated. We find
no error with this ruling.
The only corroborative evidence offered was the
testimony of appellant's cousins, Margarita and Jessica
Esquilin, who reported an occasion, prior to the carjacking,
when they observed appellant and Betancourt follow a white car
after being paged and then return irked because they had been
shortchanged money. Appellant argues that the court should have
inferred that it was Gonzalez who paged them, that the white car
was Gonzalez' and that their vexation over the money had to do
with illegal firearms. We agree with the district court that
these inferences were too remote to corroborate Gonzalez'
hearsay statement. The Esquilins' testimony lacks sufficient
detail to lend much assistance to the reliability of the
Gonzalez-Betancourt conversation. Because appellant sought to
testify to the substance of that conversation and because that
substance could not be adequately corroborated, appellant's
proffered testimony about illegal firearms dealing was properly
excluded as inadmissible hearsay.
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2. Otero's Testimony Was Also Inadmissible
Hearsay.
Before appellant took the stand, his attorney tried to
elicit the same information about Gonzalez' involvement in
firearms dealing from Otero, the co-defendant whose case was
severed before trial. On redirect examination, Otero testified
that, after driving the wounded Betancourt to the hospital and
dropping off the other passengers, he proceeded to a friend's
house, where the police caught up with him. Observing the
officers checking out his vehicle, Otero fled on foot. Counsel
asked Otero whether, at the time the police were looking at his
car, he knew Gonzalez was involved in anything illegal. The
government objected, claiming the question was beyond the scope
of its cross examination. The court sustained the objection.4
At sidebar, counsel argued for admitting the statement
to show Otero's state of mind: he fled fearing retribution from
the police because he was aware Gonzalez was a crooked cop.
4 The Rules of Evidence do not explicitly address the
scope of redirect, but state only that cross examination should
be limited to the scope of direct. See Fed. R. Evid. 611(b).
We have recognized the Eighth Circuit's rule granting trial
courts discretion to limit redirect examination to the scope of
cross. See United States v. Catano, 65 F.3d 219, 226 (1st Cir.
1995) (citing United States v. Braidlow, 806 F.2d 781, 783 (8th
Cir. 1986)). We need not further address that issue today,
however, because the district court ruled in the alternative
that the proffered statement was hearsay, and we deem this
alternative ruling correct.
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Otero had testified earlier that he knew of Gonzalez from
Betancourt prior to the carjacking, but had no personal
knowledge of a debt owed by Gonzalez purportedly due to dealings
in illegal firearms. The court sustained the objection, ruling
that the question called for inadmissible hearsay. This ruling
seems entirely proper. The fact of any illicit activity on the
part of Gonzalez could not be proven through the back door, so
to speak, by the state of Otero's mind, which was irrelevant to
appellant's case.
C. Prosecutor's Closing
Appellant's third claim of error is that, during his
closing argument, the prosecutor improperly vouched for the
credibility of a government witness and made derogatory remarks
about defense witnesses. Because none of the offensive
statements were objected to, our review is for plain error.
Fed. R. Crim. P. 52(b); United States v. Verrecchia, 196 F.3d
294, 302 (1st Cir. 1999).5
During his closing argument, the prosecutor referred
to Aleman's plea agreement, in which she had pledged to testify
honestly, suggesting that Aleman had no incentive to lie and had
5 The one comment to which an objection was made -- "the
penalties at the federal level are a lot stiffer than at the
local level" -- was ameliorated by a limiting instruction, which
rendered any error harmless. See Fed. R. Crim. P. 52(a).
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indeed testified truthfully.6 Because the verdict in this case
turned, in part, on Aleman's credibility, appellant argues that
the prosecution's assurance about her testimony was plain error.
Although a "prosecutor may not place the prestige of
the government behind a witness by making personal assurances
about the witness's credibility," United States v. Bey, 188 F.3d
1, 7 (1st Cir. 1999), "an argument that does no more than assert
reasons why a witness ought to be accepted as truthful by the
jury is not improper witness vouching." United States v.
Rodriguez, 215 F.3d 110, 123 (1st Cir. 2000). Here, the
prosecutor simply pointed out a fact in evidence -- that
Aleman's plea agreement required her to testify candidly -- and
asserted that she had upheld her end of the bargain by doing so.
This was not error. See Bey, 188 F.3d at 7 ("[A] prosecutor
properly may admit a witness's plea agreement into evidence,
discuss the details of the plea during closing arguments, and
comment upon a witness's incentive to testify truthfully.")
(citing United States v. Dockray, 943 F.2d 152, 156 (1st Cir.
1991)).
6 The specific passage to which appellant takes exception
reads: "I submit to you she is testifying, she has a plea
agreement, she has kept that plea agreement. . . . She has a
plea agreement to testify truthfully. . . . I submit to you,
ladies and gentlemen of the jury, you can consider the fact,
consider the fact that she has indeed testified truthfully."
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Appellant enumerates several derogatory comments as
improperly discrediting himself and other defense witnesses.
These remarks generally suggest that appellant concocted the
story about Gonzalez' involvement in selling illegal weapons to
paint the shooting as precipitated by a dispute over a debt, not
a carjacking. For example, in reference to appellant's
testimony, the prosecutor told the jury: "you do not have to
believe that which nobody else will believe"; "[y]ou have a
right not to have anyone insult your intelligence"; "you cannot
cover the sky with your hands . . . . [Appellant] has had
approximately two and a half years [in pretrial detention] to
come up with this story." Referring to Gonzalez and Betancourt,
the prosecutor remarked, "Dead men don't come to testify in
court. So now it's very easy to try to put words in the mouths
of dead people and build a story around these two individuals."
And in reference to appellant's cousins, he said, "the testimony
of both of the Esquilin sisters are [sic] part of a
fabrication." We have considered each of these remarks and find
no one particularly egregious; nor do they rise to the level of
plain error in the aggregate because they did not "affect[] the
outcome of the proceedings." United States v. Hughes, 211 F.3d
676, 684 (1st Cir. 2000) (citing United States v. Olano, 507
U.S. 725, 734 (1993)).
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For the foregoing reasons, the conviction is affirmed.
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