United States v. Torres-Colon , 790 F.3d 26 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1563
UNITED STATES OF AMERICA,
Appellee,
v.
KENNY TORRES-COLÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Stahl, and Barron,
Circuit Judges.
Javier A. Morales-Ramos for appellant.
Max J. Pérez-Bouret, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, were on brief, for appellee.
June 12, 2015
HOWARD, Circuit Judge. Defendant-Appellant Kenny Torres-
Colón appeals his conviction and sentence for unlawful possession
of a firearm. Although two errors occurred at trial, both are
ultimately harmless. Thus, we affirm his conviction.
I.
During the early morning hours of March 27, 2012,
Sergeant Edgardo Alvarado-Martínez and Agent Alberto Vázquez-Torres
were patrolling Highway 52 in Salinas, Puerto Rico. At
approximately 1:00 a.m., the officers recorded an oncoming vehicle
traveling at a speed of eighty miles per hour, exceeding the fifty-
five mile per hour speed limit. Activating their cruiser's siren
and lights, the officers followed the vehicle. The vehicle
momentarily slowed down as if to stop, but then took off again at
a high speed. The officers engaged in a hot pursuit, increasing
their own speed to between eighty and ninety miles per hour.
After pursuing the vehicle for approximately two miles,
both officers witnessed the individual in the front passenger seat
toss something from the passenger-side window. Sergeant Alvarado-
Martínez, who had a better vantage point from the cruiser's
passenger seat, observed the fleeing vehicle's passenger stick his
body half-way out of the window and throw something "solid and
black" from the vehicle that "made a solid sound, str[uck] the
[highway] barrier, and fell to the ground." Agent Vázquez-Torres,
who was driving, also saw something solid fly from the passenger-
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side window. Moments later, both officers saw the passenger throw
a second, "somewhat larger" item onto the roadway. By radio,
Sergeant Alvarado-Martínez requested that a nearby third officer,
Agent Lorna Padilla-Cartagena, attempt to locate the discarded
objects, indicating that one item "might possibly have been a
firearm." After about ten miles, the fleeing vehicle was met by a
police roadblock and forced to exit the highway. The vehicle
stopped in a parking lot a short distance away. The driver, Luis
J. Vázquez-Álvarez ("Vázquez"), and the passenger, defendant
Torres-Colón, were both arrested. Sergeant Alvarado-Martínez
reconvened with Agent Padilla-Cartagena on Highway 52, who had
recovered a .40 caliber Glock pistol and a fanny pack containing
seventy-two rounds of ammunition, three high-capacity 22-round
magazines, and two 15-round magazines. There was a hole in the
fanny pack, and bullets were scattered around the area.
The defendant, who had a prior felony conviction, was
charged with one count of unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g). At trial, defense counsel argued
that the defendant did not knowingly possess the firearm because he
may have been unaware of its existence until Vázquez placed it in
his lap, at which point he quickly threw it out the window. The
jury convicted the defendant, and the district court sentenced him
to sixty months' imprisonment.
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II.
A. The Use of Vázquez's Plea Agreement
The defendant first contends that the government
improperly introduced into evidence the stipulated facts from the
plea agreement of the vehicle's driver, Vázquez, as substantive
evidence of the defendant's guilt.1 Although we agree, we find the
error harmless.
Vázquez separately pled guilty to a charge arising out of
the same high-speed chase. The government subpoenaed Vázquez to
testify at the defendant's trial, and called him as the first
witness. However, before he took the stand, Vázquez's own counsel
alerted the parties and the court that Vázquez planned to assert
his Fifth Amendment right against self-incrimination. The district
court ruled that Vázquez was required to testify to the facts to
which he pled guilty, but that it would instruct Vázquez, "on a
question-by-question basis" whether he should answer a particular
question or whether the question went beyond the plea agreement's
scope. The court agreed that the government could "sit [Vázquez]
down and show him his statement and ask him if that was his
statement."
1
Because the entire plea agreement was not entered into
evidence and is not otherwise included in the record, the exact
nature of Vázquez's conviction is unclear. During his testimony,
he described the charge only as a "weapons violation."
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Commensurate with this discussion, Vázquez's testimony
was short and served largely, if not exclusively, as a vehicle to
read the plea agreement's stipulated facts to the jury. Although
hesitant to answer any questions at first, Vázquez begrudgingly
complied upon prompting by the district court judge. After
establishing that Vázquez was not testifying as a cooperating
witness, the government immediately homed in on his guilty plea.
Vázquez acknowledged that he had entered into a plea agreement in
connection with "a weapons violation," although he clarified again
that he had not cooperated with the government. He then
volunteered that, in making the agreement, he "was accepting that
the weapon was mine." That spontaneous statement was not prompted
by the prosecutor's questioning.
The government then requested to offer, over the
defendant's objection, the plea agreement's stipulated facts.
Immediately before reading the stipulated facts into the record,
the prosecutor asked: "You mentioned earlier that you admitted
culpability that the gun was yours, that's what you testified
before; right?" The government then read the following:
During the high speed chase, the officer
observed when the passenger, later identified
as Kenny Torres-Colón, threw a firearm and
fanny pack through the window. The firearm
was later described as a Glock pistol model
22, .40 caliber bearing serial number BVW-
2991US and 72 rounds of .40-caliber
ammunition. Eventually the officers detained
the vehicle and arrested both subjects.
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Direct examination ended almost immediately thereafter,
and defense counsel did not cross-examine Vázquez. The full plea
agreement was not entered as an exhibit. In its closing argument
rebuttal, the government reminded the jury that Vázquez had pled
guilty to the statement of facts accepted as part of his guilty
plea, including the paragraph read to the jury. During
deliberations, the jury requested to see the plea agreement
(specifically page eleven, containing the stipulated statement of
facts). After consulting with counsel, the court informed the jury
that the plea agreement had not been entered into evidence and,
accordingly, that the jurors would have to rely on their
recollection of the testimony.
As with other challenges to the admissibility of
evidence, we review for abuse of discretion the district court's
ruling permitting the prosecutor to read a portion of the plea
agreement into evidence. See United States v. Morales-Machuca, 546
F.3d 13, 22 (1st Cir. 2008). We begin with the uncontroversial
proposition that a defendant "is entitled to have the question of
his guilt determined upon the evidence against him, not on whether
a codefendant or government witness has been convicted of the same
charge." United States v. Dworken, 855 F.2d 12, 30 (1st Cir. 1988)
(citation and internal quotation marks omitted). As a result, the
guilty plea of a witness cannot be used as substantive evidence to
prove "the guilt of a defendant charged with similar crimes." Id.
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at 30-31 (citation and internal quotation marks omitted). A guilty
plea may be introduced, however, "for the limited purpose of
assessing the witness's credibility," United States v. Johnson, 26
F.3d 669, 677 (7th Cir. 1994), or to "dampen the effect of an
anticipated attack on the witness's credibility," Dworken, 855 F.2d
at 30. But it is impermissible for the government, in effect, to
"borrow proof from another person's conviction." United States v.
Woods, 764 F.3d 1242, 1246 (10th Cir. 2014), cert. denied, 135 S.
Ct. 1866 (2015).
The record here lacks either a clearly articulated ground
for the government's admission of the plea agreement's factual
statement or a stated rationale by the district court for
overruling the defendant's objection. The government claims that
the plea was used to "impeach" Vázquez's testimony "after he
invoked his Fifth Amendment rights and refused to testify about the
facts of the case." Yet, rather than attempt to ask any questions
that would have elicited information about the course of events
which could then be impeached, the government instead jumped
directly to asking about the guilty plea itself. Moreover, even
assuming Vázquez's general invocation of the Fifth Amendment before
trial permitted the government to presume that he would remain
silent in the face of such questions, any refusal to testify would,
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of course, leave no testimonial statements to impeach.2 Cf. United
States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009) ("[N]either the
prosecution nor the defense may call a witness to the stand simply
to compel him to invoke the privilege against self-incrimination."
(internal quotation marks omitted)).
The government also avers that the plea agreement was
read "for the sole purpose of corroborating the stipulated version
of the facts . . . and not to impute guilt on Torres-Colón by
association." But introducing corroborating facts by way of the
plea agreement is, by definition, a substantive use. It is
difficult to comprehend how the statement did not impute guilt,
2
During trial and again at oral argument before us -- though
absent from its appellate brief -- the government emphasized a
second possible credibility-based use: disputing Vázquez's
assertion at trial that he owned the firearm. But Vázquez only
made this unprompted, spontaneous statement during direct
examination, and the record reflects that the government had
already planned to introduce the plea agreement. Even accepting
the dubious proposition that the government always intended to
offer the plea agreement for this purpose, the stipulated facts say
nothing about ownership of the firearm. Although two statements
"need not be directly contradictory in order to be deemed
inconsistent," United States v. Richardson, 515 F.3d 74, 84 (1st
Cir. 2008), Vázquez's claim of ownership in no way contradicts the
plea agreement's short description of the chase. Nor, given its
limited relevance to the question of possession, is the owner's
identity the type of omitted detail that "would have been 'natural'
for the witness to include" in the prior statement such that a
sudden avowal on direct examination can be described as
inconsistent. United States v. Meserve, 271 F.3d 314, 321 (1st
Cir. 2001). Because the government failed to establish an
inconsistency that would allow admission of the plea agreement for
the purpose of impeachment, admission on this ground was not within
the district court's discretion. See Fed. R. Evid. 613(b); United
States v. Hale, 422 U.S. 171, 176 (1975) ("[T]he court must be
persuaded that the statements are indeed inconsistent.").
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given that it explicitly referenced the defendant by name. Cf.
United States v. Peterman, 841 F.2d 1474, 1480-81 (10th Cir. 1988)
(noting that the district court had carefully restricted
impeachment of the witness and screened the questions asked to
"assure they contained no references to [the defendant]"). This is
more than guilt by association; it is guilt vel non.
The only inference that fairly can be drawn from the
record is that the government offered the stipulated facts "as
substantive evidence of the guilt of a defendant charged with
similar crimes," Dworken, 855 F.2d at 31. Indeed, during trial the
government essentially acknowledged as much. That it planned from
the start to put Vázquez on the stand as its first witness merely
to read the stipulated facts into evidence suggests that the
government wanted to get those facts on the record at the very
start of its case. This use strikes us as "the bald introduction
of a witness's guilty plea concerning facts or events similar to
that for which the defendant is on trial . . . suggesting to the
trier of fact that the defendant should be found guilty merely
because of the witness's guilty plea." United States v. Universal
Rehab. Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir. 2000) (en
banc). The government cites no case -- and we can find none -- in
which the guilty plea of a codefendant was permissibly used in this
substantive way. Even more tellingly, the stipulated facts are
written in terms of what "the officer[s] observed." Because those
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officers later testified in court, we can discern nothing that the
plea agreement added to the body of evidence that was not already
covered by that later in-court testimony, other than implying the
defendant's guilt.
Allowing the stipulated facts to be read into evidence
under these circumstances was not a permissible exercise of the
trial judge's discretion under Federal Rule of Evidence 403,
especially where the judge failed to instruct the jury that it
could not consider Vázquez's guilty plea as substantive evidence of
the defendant's guilt. See Dworken, 855 F.2d at 31–32 (noting that
"cautionary instructions limiting the jury's use of the guilty plea
to permissible purposes are critical" (internal quotation marks and
citation omitted)). Despite the error, however, reversal of the
defendant's conviction is not required if the improper admission of
information concerning Vázquez's plea likely did not affect the
outcome of trial. See United States v. Tom, 330 F.3d 83, 95 (1st
Cir. 2003). To be sure, the jury's request to see the plea
agreement during deliberations indicates that some jurors may have
placed some emphasis on it. But because the stipulated facts were
entirely duplicative of the other testimony that the government
offered at trial, any prejudice was minimal.
The government also provided overwhelming evidence that
the defendant knowingly possessed the firearm, eliminating any
concern that he was found guilty merely by association. Knowing
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possession may be proven through actual or constructive possession,
and the defendant need not personally own the firearm. United
States v. Robinson, 473 F.3d 387, 398-99 (1st Cir. 2007). Actual
possession is "the state of immediate, hands-on physical
possession," while constructive possession exists where the
defendant "has the power and intention of exercising dominion and
control over the firearm." United States v. Guzmán-Montañez, 756
F.3d 1, 8 (1st Cir. 2014). "Possession, whether actual or
constructive, can be extremely brief: 'a minute of possession is as
much an offense as a year of possession.'" United States v.
DeCologero, 530 F.3d 36, 67 (1st Cir. 2008); see also United States
v. Teemer, 394 F.3d 59, 63 (1st Cir. 2005) (noting that "the
briefest moment of possession may be enough for a conviction").
Sergeant Alvarado-Martínez and Agent Vázquez-Torres both testified
that they directly observed the defendant pull his body out of the
passenger window and fling a solid black object onto the roadway,
followed by a second somewhat larger black object. Agent Padilla-
Cartagena further testified to recovering a .40 caliber Glock
pistol, a fanny pack, several magazines, and ammunition in the
vicinity of where the items were thrown from the vehicle. She
stated that no other vehicles passed by that area between the time
that the chase began and when she recovered the items. This
collective testimony provides overwhelming evidence of the
defendant's actual possession of the firearm.
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In addition, ample evidence rebutted the defendant's
defense to that possession. Relying on the rule that "mere
proximity to a weapon," standing alone, is insufficient to
demonstrate actual or constructive possession, United States v.
Weems, 322 F.3d 18, 24 (1st Cir. 2003), counsel pressed a "hot
potato" defense, suggesting that the defendant may not have known
about the firearm until Vázquez placed it in his lap. Yet the
testifying officers observed the defendant fling the firearm and
fanny pack of ammunition onto the roadway from a speeding vehicle
actively evading police during a high-speed chase, indicating that
the defendant exercised a stake in the items and some decision-
making power over what to do with them. Cf. United States v.
Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014). Additionally, when the
vehicle was searched after the high-speed chase, officers recovered
a motorcycle mask, a large Ziploc bag containing several smaller
bags appropriate for packaging drugs, two expelled .40 caliber
shell casings, and a "chewed up" bullet (a fired bullet that was
defective because the projectile had not been expelled from the
casing). Collectively, this circumstantial evidence provided
strong indicia that the defendant had knowledge not only of the
firearm, but also of a larger criminal enterprise. See United
States v. Ortiz, 966 F.2d 707, 713–14 (1st Cir. 1992). Finally, we
note that aspects of Vázquez's testimony actually proved helpful to
the defendant, particularly Vázquez's acknowledgment that the gun
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belonged to him and not the defendant, a point defense counsel
emphasized during closing argument to support his argument that the
defendant never possessed the firearm. Accordingly, the district
court's error here "is insignificant when considered against the
totality of the evidence presented at trial."3 United States v.
Landron-Class, 696 F.3d 62, 71 (1st Cir. 2012).
B. Prosecutor's Statements During Rebuttal Argument
During the government's rebuttal, the prosecutor asked
the jurors to consider, when making their decision, whether they
would want the defendant driving along the highway beside them.
The defendant did not object to this statement at trial, but now
contends that it so poisoned the well as to affect the trial's
outcome. We agree that the prosecutor's statement was improper,
but conclude that it was not sufficiently prejudicial to overcome
3
The defendant also asserts that there was insufficient
evidence for a rational jury to conclude that he knowingly
possessed the firearm, a claim he raised in the context of his
motion for acquittal. We review the denial of a Rule 29 motion de
novo, examining the evidence in the light most favorable to the
jury's verdict. United States v. García-Carrasquillo, 483 F.3d
124, 129-30 (1st Cir. 2007). As summarized above, a rational jury
could find that the defendant knowingly possessed the firearm. The
"government's evidence is not insufficient simply because the
defense presented a competing scenario." United States v. Ayala-
García, 574 F.3d 5, 11 (1st Cir. 2009).
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the high hurdle of plain error.4 See United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001) (setting forth plain error standard).
The prosecutor's problematic remark played off of defense
counsel's entreaty during his own closing argument. Defense
counsel stated:
Your days are not going to be the same when
you go [by] Salinas. You are going to be
remember [sic] this day because you are going
to be remembering Kenny Torres-Colón. When
you see the Salinas toll, when you see the
police station, you're going to remember Kenny
Torres-Colón. Why? Because you are here, you
are part of his history. We are all part of
his history.
The prosecutor then opened his rebuttal argument with a direct
allusion to this sentiment:
Now, Brother Counsel wants you to get Kenny
Torres-Colón out of here, like get him out of
here, in light of his arguments, based on the
facts and based on the evidence of this day.
And he wants you to remember, in the upcoming
days when you go by Salinas, of your decision
today. Well, the government also wants you to
remember the decision that you make today when
[you're] driving down Salinas and you wonder,
depending on your decision, whether Kenny
Torres-Colon is also driving along by you in
the car beside you.
4
Defense counsel raised the issue in his Rule 29 motion
following trial, but that belated complaint was insufficient to
preserve this claim. Counsel's failure to timely object deprived
the trial court of an opportunity to take corrective action or
provide a limiting instruction. To preserve a claim of misconduct
during closing argument, a contemporaneous objection must be made
during or directly after the prosecutor's closing argument. E.g.,
United States v. Trinidad-Acosta, 773 F.3d 298, 313-14 (1st Cir.
2014).
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We have consistently held that a prosecutor's remarks are
improper "where they serve no purpose other than to inflame the
passions and prejudices of the jury, and to interject issues
broader than the guilt or innocence of the accused." United States
v. Santos-Rivera, 726 F.3d 17, 27 (1st Cir. 2013) (citation and
internal quotation marks omitted). The challenged statement here
encouraged the jury "to act in ways other than as dispassionate
arbiters of the facts." United States v. Mooney, 315 F.3d 54, 59
(1st Cir. 2002). The naked appeal to the jurors' sense of whether
they would want the defendant driving alongside them implicitly --
if not explicitly -- invited the jury to mull considerations which
are irrelevant to determining the defendant's guilt or innocence
based solely on the trial evidence.
We view problematic statements during rebuttal with
particular scrutiny, because the government's rebuttal argument
offers the last word before the jury begins deliberations. United
States v. Ayala-García, 574 F.3d 5, 20 (1st Cir. 2009). While
"some leeway is appropriate" when comments "may fairly be seen as
a response to comparable remarks by defense counsel," id. at 18, we
read the defense's plea to "remember Kenny Torres-Colón" as a
reminder of the solemnity of the jurors' duty to render a fair and
impartial verdict, not an invocation of considerations outside the
evidence presented at trial. By contrast, the challenged rebuttal
statement raised the specter of a threat to public safety -- and
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the jurors' own personal security -- if the jury voted to acquit.
Cf. Robinson, 473 F.3d at 397 (finding impropriety where the
government "resort[ed] to unsupported hypotheticals" about gun
violence during closing argument); Mooney, 315 F.3d at 59 (finding
that the government "crossed the bounds of permissible argument" by
invoking "the jurors' sense of community safety" during opening
statements).
Although the error here was clear and obvious, we cannot
conclude that the prosecutor's statement "so poisoned the well that
the trial's outcome was likely affected." Arrieta-Agressot v.
United States, 3 F.3d 525, 528 (1st Cir. 1993) (citation and
internal quotation marks omitted). The defendant claims that
prejudice was apparent here because there was "scant" evidence that
he knowingly possessed the firearm. But we reject that contention
since, as discussed above, the government presented ample evidence
from which the jury could convict the defendant. Cf. United States
v. Verrecchia, 196 F.3d 294, 302 (1st Cir. 1999) ("Given the
strength of the evidence against [the defendant], nothing in the
prosecutor's arguments amounted to plain error.").
C. Remaining Issues
The defendant's remaining claims do not warrant relief.
First, the argument that his conviction exceeds Congress's Commerce
Clause power, because the fact of the firearm's origin in Austria
supplies an insufficient nexus to interstate commerce, is "no
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longer open in this circuit." United States v. Joost, 92 F.3d 7,
14 (1st Cir. 1996). We have "repeatedly and unreservedly rejected"
this claim, holding instead that § 922(g)(1) is constitutional when
applied to "the possession of a gun that previously traveled
interstate." United States v. Roszkowski, 700 F.3d 50, 57-58 (1st
Cir. 2012).
In passing, the defendant also avers that the indictment
and verdict were faulty because the indictment charged him with
unlawfully possessing a firearm "in and affecting interstate
commerce," rather than "in or affecting interstate commerce" as the
statute provides. See 18 U.S.C. § 922(g) (emphasis added). He
contends that the government failed to show he possessed the
firearm both "in" and "affecting" commerce. But since he neither
develops this argument nor cites any authority to support it, it is
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). In any event, it is well-established that where an
indictment charges in the conjunctive (using "and"), but the
statute is framed in the disjunctive (using "or"), the government
need only prove one of the charged acts at trial. See United
States v. García-Torres, 341 F.3d 61, 66-67 (1st Cir. 2003); see
also United States v. Rice, 520 F.3d 811, 816-17 (7th Cir. 2008).
Whether one describes possession of a firearm manufactured abroad
as "in" or "affecting" commerce, the government provided sufficient
evidence to prove the limited interstate nexus that § 922(g)
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requires. See United States v. Corey, 207 F.3d 84, 88 (1st Cir.
2000).
The defendant's related Confrontation Clause claim also
misses the mark. During direct examination, the government's
firearms expert established that the firearm's country of origin
was Austria based on a manufacturing inscription on the right side
of the firearm's frame that stated "made in Austria" and a similar
mark on the slide that stated "Austria." The expert further
testified that because firearms are not manufactured in Puerto
Rico, the firearm must have traveled in interstate or foreign
commerce. Although the defendant complains that the expert's own
presentation was testimonial, his emphasis is misplaced. Our
Confrontation Clause analysis asks not whether the testifying
witness's own statements are testimonial (they undoubtedly always
will be); instead, the operative inquiry is whether the statements
of a witness "absent from trial" are testimonial. Crawford v.
Washington, 541 U.S. 36, 59 (2004) (emphasis added). Here, given
its tangential relation to any future prosecution, the
manufacturing label's statement that the firearm was made in
Austria -- even if hearsay -- was plainly nontestimonial in the
sense that it was not made by the manufacturer with "the primary
purpose . . . to establish or prove past events potentially
relevant to later criminal prosecution." Davis v. Washington, 547
U.S. 813, 822 (2006).
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Finally, the defendant contends that the evidence was
insufficient to establish that the firearm he threw from the
vehicle was semiautomatic -- a necessary factual predicate for the
base offense level the district court applied at the sentencing
phase. See U.S.S.G. § 2K2.1(a)(4)(B). We review the district
court's findings of fact at sentencing for clear error, United
States v. Wallace, 573 F.3d 82, 92 (1st Cir. 2009), and find none.
The government pointed out during the sentencing hearing that the
trial evidence established the firearm was a .40-caliber Glock
pistol, commonly known to be semiautomatic. The court nevertheless
granted a continuance to allow the government to proffer additional
evidence at the sentencing hearing that the Glock pistol was indeed
semiautomatic. Special Agent Jorge Rosendo testified that Glock
pistols are manufactured as semiautomatic weapons, and that he
personally conducted a "dry test" to determine if the weapon in
question worked in accordance with its design. The test entailed
moving the slide back and forth to see if the trigger reset (as in
a semiautomatic firearm) or remained activated (as it would for a
modified, automatic firearm). Agent Rosendo testified that "the
slide returned, and the trigger reset." From this testimony, the
district court could find by a preponderance of the evidence that
the firearm was an unaltered Glock and, consequently, a
semiautomatic firearm. Though defense counsel attempted to expose
perceived weaknesses in Agent Rosendo's testimony during cross-
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examination, the district court did not clearly err in finding that
effort unpersuasive.
III.
For the foregoing reasons, we affirm the defendant's
conviction and sentence.
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