United States Court of Appeals For the First Circuit No. 00-1990

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JOSÉ A. OTERO-MÉNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Circuit Judge,

Lipez, Circuit Judge,

and Zobel,* District Judge.

Víctor P. Miranda-Corrada, on brief, for appellant. Thomas F. Klumper, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant U.S. Attorney, Chief, Criminal Division, were on brief, for appellee.

* Of the District of Massachusetts, sitting by designation. December 10, 2001

-2- TORRUELLA, Circuit Judge. Following a criminal trial, a jury

convicted defendant-appellant José A. Otero-Méndez ("Otero-Méndez") of

(1) aiding and abetting an attempted carjacking, in violation of

(2) and (3), and (2) aiding and abetting the use and

carrying of a firearm in connection with a crime of violence, in

violation of

(c)(1) and (2). On appeal, Otero-Méndez

challenges several elements of the convictions, including: (1) the

district court's denial of his motion for acquittal; (2) various

evidentiary rulings of the district court; (3) the jury instructions

given by the district court; and (4) the applicability of the federal

carjacking statute to Puerto Rico. We affirm.

I

In the late evening hours of April 4, 1996, Otero-Méndez,

together with four companions, was driving his car in the San Juan

metropolitan area. Next to him, in the passenger's seat, was Giovani

Castro-Ayala ("Castro-Ayala"). In the rear seat, Jomary Alemán-

González ("Alemán-González") sat in the middle with Hanson Wilson-

Millán ("Wilson-Millán") to her left and Javier Betancourt

("Betancourt") to her right.

As they were returning home, a white Nissan 300ZX ("the

300ZX") automobile passed them. Previously, Otero-Méndez, Wilson-

Millán, and Betancourt had discussed finding new wheel rims for Otero-

Méndez's car. Upon seeing the 300ZX, they decided that they would

-3- forcibly take its wheel rims, so Otero-Méndez turned his car around and

followed the 300ZX. When the 300ZX stopped in front of a residence,

Otero-Méndez pulled up next to it. Betancourt and Wilson-Millán got

out of the car, pulled out their weapons, and approached the 300ZX.

Shots were fired by Betancourt, Wilson-Millán, and the driver of the

300ZX. Hit by multiple gunshots, the driver of the 300ZX died. Then,

both Betancourt and Wilson-Millán got back into appellant's car.

Appellant took Betancourt, Alemán-González, and Castro-Ayala to a local

hospital because Betancourt had also been shot. He subsequently died.

A few days after the incident, appellant, having dyed his

hair and using eyeglasses and a fictitious name, left Puerto Rico

through the Aguadilla Airport. He was subsequently apprehended in

Connecticut and transferred to Puerto Rico where he was indicted. He

was then convicted of aiding and abetting an attempted carjacking and

aiding and abetting in the use of a firearm.

II

Appellant moved at the end of his trial for an acquittal,

claiming that the government failed to prove its case beyond a

reasonable doubt. In regard to the carjacking conviction, appellant

contends the government did not meet its burden of proof in two ways:

(1) the government did not prove that the 300ZX had been transported or

shipped in interstate or foreign commerce (the "jurisdictional element"

of

); and (2) the government failed to show that

-4- appellant had the requisite intent under

. In regard

to the weapons conviction, appellant argues that the government failed

to prove the charge beyond a reasonable doubt.

When addressing sufficiency of the evidence claims, we review

the evidence in the light most favorable to the prosecution, and review

de novo the district court's determination that the jury reasonably

found each element of the crime to have been proven beyond a reasonable

doubt. See United States v. Colón-Muñoz,

(1st Cir.

1999), cert. denied,

(2000); see also United States v.

Hernández,

(1st Cir. 1998). Our role in this review is

limited: "An appellate court plays a very circumscribed role in gauging

the sufficiency of the evidentiary foundation upon which a criminal

conviction rests." United States v. Rivera-Ruiz,

(1st Cir.), cert. denied, No. 01-6313,

(U.S. Oct. 15,

2001). We find that the prosecution did present sufficient evidence on

all of the challenged points to allow a reasonable jury to find the

defendant guilty.

A. Jurisdictional element of § 2119

Otero-Méndez argues that the government failed to prove that

the car involved had been transported, shipped, or received in

interstate or foreign commerce. The jurisdictional element of

requires that the government prove that the car in

question has been moved in interstate commerce, at some time. See

-5- United States v. Johnson,

(6th Cir. 1994). We find

that the testimony of FBI Agent Thomas Oates satisfied the

jurisdictional element.

Agent Oates testified that all automobiles arrive by ship

into Puerto Rico and that he was unaware of any automobiles

manufactured in Puerto Rico. This testimony went unchallenged. In

United States v. Lake, a police officer testified that no motor

vehicles are manufactured in the U.S. Virgin Islands and all cars must

be shipped into the territory.

(3d Cir. 1998). The

Third Circuit held this testimony to be sufficient to establish the

jurisdictional element of

.

The court also noted

that it was reasonable for the district court judge to admit this

testimony as within the personal knowledge of the witness.

Like

the U.S. Virgin Islands, Puerto Rico is an island and not a

particularly large one. It is entirely reasonable that a federal agent

working in Puerto Rico would know about the lack of any manufacturing

facilities for cars on the island. Therefore, the district court acted

within its discretion when admitting Agent Oates' testimony, and a

reasonable jury could conclude on the basis of his testimony that the

300ZX had been transported in interstate or foreign commerce.1

1 Appellant also argues that the district court erred in allowing Agent Oates to testify that the 300ZX had been manufactured in Japan. He based this conclusion of a search of the National Insurance Crime Bureau ("NICB") database. Because we hold the jurisdiction element satisfied otherwise, we find it unnecessary to decide whether this

-6- B. Intent element of § 2119

Appellant claims that the government failed to prove he

shared any intent to cause death or serious bodily injury as required

under § 2119. As an aider and abetter, appellant must have

"consciously shared the principal's knowledge of the underlying

criminal act, and intended to help the principal." United States v.

Taylor,

(1st Cir. 1995). Under

, the

government must prove that the defendant intended to cause death or

serious bodily injury. See United States v. Hernández,

(1st Cir. 1998). We find that a reasonable jury could have found that

appellant had the requisite intent.

It is difficult to articulate a precise intent standard for

an aider and abetter. See United States v. Spinney,

, 236-

40 (1st Cir. 1995) (discussing the differing intent standards

articulated, at various times, for aiders and abettors). For a

specific intent crime, like aiding and abetting, the defendant must

have consciously shared some knowledge of the principal's criminal

intent. See United States v. Loder,

(1st Cir. 1994).

testimony was properly admitted under the residual exception to the hearsay rule. Fed. R. Evid. 807. If it was error, it was harmless error. Appellant also objects to other elements of Agent Oates' testimony, including that Agent Oates never identified the vehicle identification number ("VIN") he entered into the NICB database, the VIN of the 300ZX was never conclusively established, and that Agent Oates was not qualified as an expert witness. We find all these arguments to be without merit.

-7- A generalized suspicion is not enough. See

at 591 (citing United

States v. Labat,

(2d Cir. 1990)); see also Spinney,

(holding that if the defendant did not have actual

knowledge of the principal's intent, there must be at least "enhanced

constructive knowledge"). We have previously required evidence that

the defendant was "on notice." United States v. Rosario-Díaz,

, 63 (1st Cir. 2000). However, we have declined to decide whether

the evidence must show the defendant knew to a "practical certainty."

Id. We need not decide this issue today, as a reasonable jury could

have found that appellant knew to a practical certainty that Betancourt

and Wilson-Millán intended death or serious bodily injury.

Appellant argues that the lack of any discussion or

conversation regarding the use of guns or force to take the car or

wheel rims demonstrates that any intent to cause death or serious

bodily injury could not have been formed until after Betancourt and

Wilson-Millán exited appellant's car. While no conversation took place

about the use of force, Castro-Ayala testified that Betancourt and

Wilson-Millán pulled out their guns as they exited appellant's car.

Appellant himself testified that he knew that Betancourt and Wilson-

Millán were carrying guns when they got into his car.2 Appellant also

testified that shots were fired immediately after Betancourt and

2 Appellant's testimony from the trial of Wilson-Millán was admitted into evidence.

-8- Wilson-Millán exited his car. This uncontradicted testimony provides

sufficient grounds for a reasonable jury to find that appellant knew to

a practical certainty that Betancourt and Wilson-Millán intended to use

deadly force.

C. Weapons charge

Appellant argues that his conviction for aiding and abetting

in the use or carrying of a firearm in connection with a carjacking,

(c)(1) and (2), cannot be sustained because the

government failed to prove its case beyond a reasonable doubt. In

support of this proposition, appellant points to the facts that he did

not carry a firearm during the commission of the carjacking, did not

provide firearms to his associates, did not have access to a weapon

during the commission of the crime, and only helped dispose of a

weapon. As a result, he argues that the evidence is insufficient to

sustain a conviction for aiding and abetting in the use of a firearm.

Appellant's conviction for aiding and abetting in the use of

a firearm during a crime of violence can be sustained under

, which provides for punishment as a principal if a defendant is

convicted of aiding and abetting a crime. To satisfy the requirements

of section 2, the prosecution must prove that appellant knew a firearm

would be carried or used in a crime of violence and that he willingly

took some action to facilitate that carriage or use. See United States

v. Bennett,

(1st Cir. 1996). The evidence shows that

-9- appellant knew that Betancourt and Wilson-Millán were illegally

carrying weapons as he drove them to the scene of the crime.

Additionally, appellant saw Betancourt fire shots at the victim's car,

and appellant later disposed of Betancourt's gun. This evidence

supports the inferences that appellant both knew that firearms would be

carried or used during the carjacking and actively facilitated their

use. Therefore, we affirm appellant's conviction on this count.

-10- III

Appellant contends that the district court made a series of

erroneous evidentiary rulings which cumulatively denied appellant his

right to a fair trial. We review each of the district court's

evidentiary rulings for abuse of discretion. See United States v.

Reeder,

(1st Cir. 1999); see also Williams v. Drake,

(1st Cir. 1998). We find the district court did not

abuse its discretion.

A. Evidence of appellant's flight and disguise

Appellant argues that the district court should not have

admitted evidence of appellant's flight and disguise during that

flight. In regard to the flight itself, appellant concedes that flight

can be evidence of a guilty conscience, but argues that evidence of

flight in this case was unfairly prejudicial. In addition, appellant

asserts that introducing evidence of his use of a false identity is

equivalent to impeaching his credibility because it calls into question

his honesty.

The law of this circuit clearly allows the district court to

admit evidence of both flight and use of a false identity if probative

of a guilty conscience: "Evidence of a defendant's flight and attempts

to conceal or falsify identity may be presented at trial as probative

of a guilty mind if there is an adequate factual predicate creating an

inference of guilt of the crime charged." United States v. Candelaria-

-11- Silva,

(1st Cir. 1998). Here, the uncontradicted

evidence shows not only that appellant was present during the attempted

carjacking, but that appellant was the one who pursued the 300ZX and

who desired the wheel rims. Appellant let Betancourt and Wilson-Millán

out of his car, knowing that they intended to take the other car and

that they carried illegal weapons. This evidence clearly establishes

an adequate factual predicate of guilt. Therefore, the trial court

properly admitted evidence of appellant's flight and false identity.

As to appellant's argument that the evidence of flight was

unfairly prejudicial, the district court found the probative value

substantially outweighed any significant prejudice. Rule 403 of the

Federal Rules of Evidence allows relevant evidence to be excluded if

"its probative value is substantially outweighed by the danger of

unfair prejudice." In reviewing Rule 403 challenges, we are extremely

deferential to the district court's determination. See United States

v. Hernández,

(1st Cir. 2000), cert. denied,

(2001) ("district court's Rule 403 balancing stands unless it is

an abuse of discretion."); see also United States v. Rosario-Peralta,

(1st Cir. 1999). In assessing the probative value of

the evidence, the district court specifically pointed to appellant's

prior statement in which he explained his flight and disguise as an

effort to avoid being connected to the attempted carjacking. In light

of this statement, we agree with the district court's finding that

-12- evidence of appellant's flight and disguise is probative of a guilty

conscience and not unfairly prejudicial.3 We certainly cannot find an

abuse of discretion.

As for appellant's argument that the evidence relating to his

disguise attacked his credibility and was an impermissible character

attack, we find this argument to be without merit. The evidence was

admitted as probative of appellant's guilty conscience, not as a

character attack. The reasoning underlying appellant's challenge would

convert all evidence relating to use of disguises and false names into

impermissible character attacks. Given the absurdity of such a

position, we decline to adopt it.

B. Appellant's prior testimony

Appellant contests the introduction into evidence of his

prior testimony given at the severed trial of his co-defendant. He

argues that this testimony was irrelevant and highly prejudicial and

should have been barred under Rule 403 of the Federal Rules of

3 Appellant also challenges the jury instruction given on flight and concealment of identity. However, appellant does not identify, in this appeal, any separate grounds on which he objects to this instruction. In fact, the challenged jury instruction only tempers the evidence of flight and disguise. The instruction counseled the jury that intentional flight does not create a presumption of guilt, but is only a basis to infer a guilty conscience. Additionally, the instruction reminded jurors that flight may be consistent with innocence. As we find the admission of evidence relating to appellant's flight and use of disguise not to be an abuse of discretion, we do not find the jury instruction given on this point to be an abuse of discretion. See United States v. Smith,

(1st Cir. 1988) (holding that we review challenges to jury instructions for abuse of discretion).

-13- Evidence. First, we note that appellant's prior statements are

admissible as party admissions. See Fed. R. Evid. 801(d)(2)(A)

(providing that an out-of-court statement is not hearsay if it is

offered against the party and it is the party's own statement). Next,

we turn to the Rule 403 balancing question. Here, the prior testimony

bears on appellant's flight, which was relevant as discussed above.

Also, the testimony is appellant's version of the events, made with the

consent of his attorney after being advised of his constitutional

rights. As such, its high probative value cannot be said to be

outweighed by its asserted unfair prejudice, and its introduction does

not constitute an abuse of discretion.

C. Testimony of decedents' relatives

Appellant argues that the testimony given by the decedents'

relatives4 should have been barred under Rule 403 of the Federal Rules

of Evidence because it was both irrelevant and highly prejudicial.

Specifically, he charges that this testimony was introduced only to

inflame the jury since the identities of the deceased were not at

issue. We agree with the district court that the identities of the

deceased were relevant. See Fed. R. Evid. 401 (defining relevant

evidence as "evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more

4 Luis González-Pérez, the father of the driver of the 300ZX, and Delma Betancourt-Betancourt, the mother of Betancourt, testified.

-14- probable or less probable than it would be without the evidence.").

Appellant was charged, and convicted, of aiding and abetting in a

deadly carjacking. Appellant had not stipulated to the identities of

the decedents, and, indeed, when a prior witness identified a picture

of the body of the driver of the 300ZX, appellant did not contest that

testimony for relevance. As to whether the contested testimony was

unfairly prejudicial so as to outweigh the probative value, we find no

abuse of discretion.

D. Toxicology report for Betancourt

Appellant also contests the admission of a toxicology report

showing various drugs in Betancourt's body at the time of death,

claiming that this report had limited probative value and was unfairly

prejudicial. First, the fact that Betancourt was under the influence

of drugs when he and Wilson-Millán attempted to take the 300ZX bears on

Betancourt's state of mind, as a principal in the crime. Second, the

unfair prejudice created here, associating the appellant with a drug

user, is not very substantial. Therefore, we find no abuse of

discretion by the trial judge in admitting this evidence. Moreover,

the admission of such evidence, even if erroneous, would not be

sufficient to disturb appellant's conviction.

IV

Appellant contends that the district court erred when it

refused to give the jury an accessory-after-the-fact instruction as

-15- requested by the appellant. We review challenges to jury instructions

for abuse of discretion. See Beatty v. Michael Mach. Bus. Corp.,

(1st Cir. 1999); see also Smith,

. We

find no abuse of discretion.

Appellant concedes that here an accessory-after-the-fact

charge is not a lesser included offense. See United States v. Rivera-

Figueroa,

, 6 n.5 (1st Cir. 1998) (holding "the accessory

offense is not a lesser included offense because it requires proof that

the principal offense does not, namely, that the defendant assisted

after the principal crime was committed") (emphasis in original).

Therefore, appellant is not entitled to this instruction as a matter of

law. See

.

However, appellant contends that the accessory-after-the-fact

instruction was essential to his defense and sufficient evidence

supported the instruction, and, therefore, the district court's denial

of the instruction is reversible error. United States v. Rosario-

Peralta,

(1st Cir. 1999), addressed a similar

situation, a failure to give an accessory-after-the-fact instruction in

a carjacking prosecution. There, we set out a four-part test to judge

whether a defendant is entitled to a particular instruction:

. . . a trial court's failure to deliver a theory of defense instruction will result in reversal only if: (1) the requested instruction correctly describes the applicable law; (2) sufficient evidence is produced at trial to warrant the

-16- instruction; (3) the charge actually delivered does not fairly present the defense; and (4) the requested instruction was essential to the effective presentation of the particular defense.

(citing United States v. Montañez,

(1st Cir.

1997)). Appellant argues that all four requirements are met here,5 but

we disagree. The evidence presented was insufficient to warrant the

requested instruction.

In support of his argument, appellant points to several

facts: (1) the desired wheel rims would not actually fit on appellant's

car; (2) the evidence as to appellant's interest in the wheel rims was

contradictory; (3) one of the witnesses was surprised when she heard

shots; (4) no one discussed how to dispose of the car; and (5) no one

spoke of hurting the driver of the car. None of the evidence to which

appellant points contradicts the facts that (1) appellant expressed a

desire for new wheel rims; (2) appellant voluntarily turned his car

around and followed the victim's car; (3) appellant voluntarily let

Betancourt and Wilson-Millán out of the car so they could take the

victim's car; (4) appellant knew that Betancourt and Wilson-Millán had

guns; and (5) appellant waited for Betancourt and Wilson-Millán to

return after they began firing at the driver of the 300ZX. Therefore,

5 However, appellant concedes a legal error in his submitted instruction. His submitted instruction implied that the jury could find appellant guilty of being an accessory-after-the-fact, but appellant had not been charged with this offense. We will ignore the implications of this error as they are not necessary to our holding.

-17- like in Rivera-Figueroa, the evidence here that appellant was only an

accessory-after-the-fact is insufficient to warrant the requested

instruction.

In addition, the requested instruction had the potential to

confuse the jury. In Rivera-Figueroa, we determined that giving the

accessory-after-the-fact instruction was likely to confuse the jury

because it requires giving the jury an additional set of elements for

an uncharged crime of which the defendant cannot be convicted.

. That same risk of confusion exists here. Therefore, we

cannot find that the district court abused its discretion in refusing

appellant's requested instruction, much less that any such error was

reversible error.

V

Finally, appellant argues that federal jurisdiction is

lacking in this case. He alleges that Congress lacks authority to

extend

to Puerto Rico because the Insular Cases6 bar

the application of the Commerce Clause to Puerto Rico.7 In Trailer

Marine Transport Corporation v. Rivera-Vázquez, we noted that the

6 Balzac v. Porto Rico,

,

,

(1922); Downes v. Bidwell,

,

,

(1901); Dooley v. United States,

,

,

(1901); DeLima v. Bidwell,

,

,

(1901). 7 In Rivera-Figueroa, we upheld the power of Congress to enact

under the Commerce Clause.

.

-18- Supreme Court and this circuit have long recognized the power of

Congress, under the Commerce Clause, to legislate for Puerto Rico.

, 7 n.3 (1st Cir. 1992) (citing Secretary of Agric. v. Cent. Roig

Ref. Co.,

(1950)). Therefore, we find appellant's

contention without merit.

VI

For the foregoing reasons, we affirm Otero-Méndez's

convictions.

-19-