United States Court of Appeals For the First Circuit

No. 08-2108

UNITED STATES OF AMERICA, Appellee,

v.

FÉLIX ALBERTO CASTRO-DAVIS, a/k/a Belto, a/k/a Bertito, Defendant, Appellant.

No. 08-2109

UNITED STATES OF AMERICA, Appellee,

v.

FÉLIX GABRIEL CASTRO-DAVIS, a/k/a Gaby, Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge, Baldock,* Senior Circuit Judge, and Lipez, Circuit Judge.

Alan D. Campbell, for appellant Félix Alberto Castro-Davis. Andrew S. Crouch, for appellant Félix Gabriel Castro-Davis.

* Of the Tenth Circuit, sitting by designation. Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

July 16, 2010

-2- TORRUELLA, Circuit Judge. This is an appeal from the

convictions of Defendants-Appellants Félix Alberto Castro-Davis

("Alberto") and Félix Gabriel Castro-Davis ("Gabriel")

(collectively "defendants").1 Alberto and Gabriel were found

guilty of conspiracy to commit carjacking, in violation of

, aiding and abetting a carjacking resulting in death,

in violation of

(3) and 2, and using or carrying

a firearm in connection with a carjacking, in violation of

(c)(1)(A)(ii) and 2. They appeal their convictions

based on the sufficiency of the evidence, the introduction of

defendants' statements against co-defendants, the making of

prejudicial statements by the prosecution, and flawed jury

selection and sentencing procedures.

After careful consideration, we affirm the convictions of

both defendants, but vacate their sentences and remand to the

district court.

1 These two cases were consolidated with United States v. Figueroa Cartagena, No. 08-2110, and argued before this court on November 2, 2009. Although the issues presented in all three appeals are substantially similar, we opt to decide the cases separately. See, e.g., United States v. Caraballo,

, 7 n.1 (1st Cir. 2008).

-3- I. Background

A. Factual Background2

On the morning of July 15, 2006, Héctor Pérez-Torres

("Pérez") left his home in Caguas, Puerto Rico at 11:00 am to drive

his bolita route.3 Pérez had been a bolitero for many years, and

was driving his wife's 1986 Mazda 626 along his usual route, where

he would stop to collect lottery bets. He was seen later that day,

around 3:00 or 4:00 p.m., at the Farmacia San Antonio, which was a

regular stop on his route, by pharmacist Brenda García-Medina

("García"). The pharmacy is located in and adjacent to a section

of the town called El Salchichón, and connected to it by means of

a secluded road, which is surrounded by dense vegetation. Later,

Pérez's car was seen driving through El Salchichón, although

witness Jannette Ocasio-Ortiz ("Ocasio") testified that the car she

recognized as belonging to Pérez was not being operated in the

usual way. While Pérez would ordinarily drive very slowly and honk

his horn to allow those who wished to play the bolita to approach

him, on July 15, 2006 the car was driving very quickly. Ocasio

also testified that, although she could not see who was driving the

car, she noticed that the silhouette of the driver was too tall to

be Pérez.

2 These facts are drawn from the trial transcript, based on the findings of a reasonable jury. 3 The "bolita" is an underground lottery. Pérez was a "bolitero," or numbers runner.

-4- Later that evening, José Figueroa-Cartagena ("José") was

in his home when he received a telephone call from his sister,

Neliza. Neliza asked José to step outside, because defendant

Gabriel wanted to speak with him. José complied and spoke with

Gabriel, who offered José money to watch Pérez's car, with Pérez

inside. José agreed and allowed Alberto, who was driving Pérez's

Mazda, to park the car underneath a tent José used in his

automotive repair business. Pérez was in the back seat.

Alberto and Gabriel proceeded to search the car, and José

testified that he witnessed Alberto remove a revolver from the car

and place it on the roof. Though defendants did not appear to

remove anything else from the car, José testified that he overheard

them having a discussion about an ATM card they found on Pérez's

person. José also testified that Alberto bragged to him about the

speed of the car, and told him that they had taken it "policeman

style." When asked what that meant, José explained that he

understood this phrase to mean "that they stopped the car . . .

with the weapon, and they said, this is the police."

Alberto and Gabriel then left the area to attempt to

withdraw money using Pérez's ATM card, leaving José to watch over

Pérez, who remained in the back of his Mazda.

Alone with Pérez, José fielded several requests from his

captive which included rolling down the windows and getting him a

-5- drink of water. At this point, José noticed that Pérez was

handcuffed.

While guarding Pérez, José placed a call to defendants,

and spoke with Neliza, who assured him that they would return

soon.4 Shortly thereafter, Pérez attempted an escape, which

resulted in a struggle between him and José. In the course of the

struggle, Pérez shouted: "Help, they want to kill me." As José

fought with Pérez, Alberto, Gabriel, and Neliza arrived. Alberto

and Gabriel helped subdue Pérez. Hearing the ruckus, two

neighbors, Laura Ramos-Ortiz ("Ramos") and Celestina Montañez-

Borges, approached to inquire what was happening. José told them

not to worry and not to call the police. Then, Neliza again told

the two neighbors to leave. When they attempted to move in closer,

Neliza and Gabriel closed a gate that divided the properties to

prevent the neighbors' access.

After this incident, which occurred approximately fifteen

to twenty minutes after Pérez was left in José's custody, José

drove away to a gas station. There, he washed the mud off of his

car and drank a beer. Gabriel and Alberto arrived with Neliza soon

thereafter in two separate vehicles. Neliza exited her Grand

Vitara sport utility vehicle, to check on José. Alberto, Gabriel,

4 José testified that he intended to speak with Gabriel, but it was Neliza who answered the phone. It is unclear whether she answered Gabriel's phone, or if José accidentally called his sister's phone.

-6- and Pérez remained in Pérez's Mazda. José testified that he saw

that Gabriel had Pérez in a headlock. After briefly speaking with

José, Alberto, Gabriel and Neliza left the gas station in the

manner they arrived, and drove off in the same direction.

Later that night, as she was falling asleep, Pérez's

wife, Luz Rosario-García ("Rosario"), was startled by the sound of

intruders. She investigated and found a young man, whom she

described as tall and skinny, in her home. The man called Rosario

by name and told her to calm herself. He also stated that if she

shouted, she would get both herself and the man killed. Rosario

then encountered a second intruder, whom she described as tough-

looking, and wearing a mask and gloves. Rosario testified that she

observed that the second intruder had a firearm, though she did not

know what kind it was. The intruders asked for her ATM card, which

she procured for them. They also asked for her personal

identification number to activate the card, and when Rosario began

to recite the number, which was the same as her husband's, the

second intruder indicated that he already knew it. Rosario

testified that the intruders then asked for access to her husband's

moneybox, and when she told them that they would have to wait for

Pérez to return, they informed her that they had kidnaped him.

After the intruders left, Rosario found that they obtained entry to

her home by using her husband's keys, which they abandoned.

-7- The next day, July 16, 2006, José saw Neliza and Gabriel

again at his home. Gabriel stated that they "had to kill him,"

referring to Pérez, because "it got real difficult for us and he

struggled a lot." Gabriel explained that, although Alberto had a

gun, they chose to asphyxiate Pérez with duct tape, because they

did not want to get the gun dirty. José testified that both Neliza

and Gabriel instructed him to speak with the neighbors that

attempted to intervene on the previous day, and to secure their

silence, if necessary, with threats.

B. The Investigation

Pérez's body was found on July 17, 2006 in the backseat

of his Mazda in Caguas. The cause of death was mechanical

asphyxiation from the duct tape on his face. State agents

contacted José regarding the events outside his home. Although he

did not cooperate at first, he later agreed to speak candidly about

the incident.

Agents from the Federal Bureau of Investigation ("FBI")

presented Rosario with a spread of photographs, the third depicting

Gabriel. She stated that she recognized the man in the third photo

from her neighborhood. She also stated that he resembled the

unmasked intruder in her home, even though he appeared thinner in

person than in the photograph. Documenting her impressions for the

agents, she wrote and signed a note that stated: "With reference to

-8- number three, he looks alike, but I cannot identify whether this is

the young man who entered my home."5

FBI agents arrested Gabriel and interviewed him. When

asked about his relationship to Neliza, Gabriel stated that she was

his girlfriend. Agents questioned Gabriel about the murder of

Pérez, but Gabriel denied any knowledge or involvement. When asked

why he had been seen fighting with the victim, Gabriel stated that

Neliza's neighbors were trying to frame him. The agent pointed out

to Gabriel that he had not said where the fight took place.

Gabriel continued to deny everything.

On April 25, 2007, during his pre-trial incarceration,

Alberto spoke to his mother, Carmen Davis, over the telephone. The

conversation was recorded. During the course of this conversation,

Alberto told his mother that "Neliza is the one who is talking,"

and "That bitch is going to fuck us over." As to Gabriel, he

stated, presumably in reference to the police: "They have a picture

of him and everything. I saw it."

5 At trial, Rosario again was not able to make a definite identification, but stated that the photo resembled the unmasked intruder:

[Prosecution]: So what you're telling us is the young man who came into your house looked a lot like this young man in this photo . . . but he was skinnier; is that right?

[Rosario García]: Correcto, because when he turned the lighter [sic.] on, I tried to look at him to see who he was. Correcto.

-9- C. Procedural History

On April 25, 2007, a grand jury in Puerto Rico returned

a three-count indictment charging all three defendants with one

count each of conspiracy to commit carjacking, in violation of

; carjacking, in violation of

(3) and

2; and the use and carrying of a firearm during a violent crime, in

violation of

(c)(1)(A)(ii) and 2.

The case proceeded to a jury trial on March 5, 2008.

During the jury selection process, the district court judge asked

counsel whether there were any challenges to potential jurors for

cause. After two for-cause challenges, the judge asked whether

counsel wished to exercise any peremptory challenges. But, the

judge immediately assigned two jurors to act as alternates,

essentially combining the regular and peremptory challenges. It is

uncontroverted that this violated Rule 24 of the Federal Rules of

Criminal Procedure, which requires separate regular and peremptory

challenges for ordinary jurors and alternates. Fed. R. Crim. P.

24(c)(4)(A).6

6 Neither Alberto nor Gabriel appeal on this issue, but we note that this issue has been before us on other occasions. See, e.g., United States v. González-Meléndez,

(1st Cir. 2010). While the Supreme Court "has indicated that mistaken denials of peremptory challenges do not ordinarily warrant automatic reversal,"

(quoting Rivera v. Illinois,

(2009)), district court judges should refrain from committing this error in the future.

-10- At trial, a recording of Alberto's telephone conversation

with his mother was introduced over defendants' objections, as was

Gabriel's statement to agents which referred to Neliza. The

judge's instructions to the jury did not limit either the relevance

of Alberto's recorded conversation or Gabriel's statements to

federal agents.

The jury returned a guilty verdict on all counts against

Gabriel and Alberto. They were sentenced to 60 months under the

conspiracy count to be served concurrently with life imprisonment

as to the carjacking count, and an 84 month consecutive term for

the firearms count. Gabriel and Alberto timely appealed their

convictions on grounds of insufficiency of the evidence, certain

evidentiary rulings made by the district judge, a violation of

Fed. R. Crim. P. 24(c)(4)(A), and statements made by the prosecutor

during closing argument.7

II. Discussion

A. Sufficiency of the Evidence

Alberto and Gabriel deny that the government presented

sufficient evidence against them to find each element of the

offenses beyond a reasonable doubt. We thus review de novo

"whether, taking the evidence in the light most favorable to the

7 While only Alberto initially appealed his sentence based on the district court's misapplication of the sentencing guidelines, we allowed Gabriel to adopt the argument, as the mistakes were concurrent.

-11- jury verdict, a reasonable factfinder could have found the

defendant[s] guilty beyond a reasonable doubt." United States v.

Rodríguez-Berríos,

(1st Cir. 2009). We do not

"weigh evidence or make credibility judgments," but rather "must

uphold any verdict that is supported by a plausible rendition of

the record." United States v. Ofray-Campos,

(1st

Cir. 2008)(citation omitted).

1. Conspiracy

Alberto and Gabriel were charged under

To support a conviction under a conspiracy charge, the government

must show that a defendant had both the intent to agree to commit

a crime, and the intent that the crime be completed. United States

v. Escobar de Jesús,

(1st Cir. 1999). "A

sustainable conspiracy conviction requires direct or circumstantial

evidence which establishes beyond a reasonable doubt that the

defendant and one or more coconspirators intended to agree and

. . . to commit the substantive criminal offense which was the

8

reads:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

-12- object of their unlawful agreement." United States v. Tejeda,

(1st Cir. 1992) (internal quotation marks omitted).

"The prosecution need only show knowledge of the basic agreement,

with an intent to commit the underlying substantive offense. The

requisite knowledge and intent can be proven through circumstantial

evidence, including inferences from acts committed by the defendant

that furthered the conspiracy's purposes." United States v.

García-Pastrana,

(1st Cir. 2009) (internal

quotation marks and alterations omitted). Defendants argue that

the government presented no evidence of an agreement or specific

plan to carjack the victim, and thus cannot maintain a conspiracy

conviction. We do not agree.

The evidence presented at trial shows a well-orchestrated

plot to carjack and kidnap the victim, which bespeaks a prior

agreement. First, there was testimony that Alberto and Gabriel

lived two houses away from Pérez, a fact that would allow the jury

to reasonably infer that they were aware of Pérez's dealings and

movements. There was also testimony that the last place Pérez

stopped his car before the carjacking was a pharmacy on a secluded

country road with lots of surrounding cover and vegetation.

Moreover, the carjacking occurred on a bolita day, when one

familiar with Pérez's dealings could infer that he was likely to

have significant amounts of cash in the car. Finally, the presence

of the revolver and the handcuffs used to subdue Pérez could also

-13- reasonably lead to an inference of defendants' forethought in

executing their heist. See United States v. Pérez-González,

(1st Cir. 2006) (holding that jury could reasonably

infer existence of conspiracy to break into and vandalize a naval

base when defendants brought sledgehammers and wire cutters to

nearby celebration and acted in a coordinated fashion). Therefore,

since the carjacking seems to have been perpetrated at a

specifically opportune time, in a conveniently secluded place,

using the tools necessary to pull off the operation, a reasonable

jury would have legally sufficient evidence to find that defendants

Alberto and Gabriel planned the crime in advance and possessed the

requisite intent to support a conviction for conspiracy.

2. Carjacking9

The elements of a carjacking resulting in death are (1)

taking or attempted taking from the person or presence of another;

(2) a motor vehicle transported, shipped, or received in interstate

or foreign commerce; (3) through the use of force, violence, or by

intimidation; (4) with the intent to cause death or serious bodily

harm; (5) that results in death. See

(3); United

9 Alberto also argues in his brief that the government did not prove all of the elements of the firearms charge beyond a reasonable doubt. See

(c)(1)(A)(ii). Because there has been lack of even minimal briefing on appeal, we find that this argument has been waived for lack of appropriate argumentation. See United States v. Bongiorno,

(1st Cir. 1997) ("We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.").

-14- States v. García-Álvarez,

(1st Cir. 2008).

Defendants argue that the government also failed to show any of

these elements, save the second, beyond a reasonable doubt. Again,

we disagree.

To take a motor vehicle from the person or presence of

another requires, "at a minimum, proximity to the vehicle and the

ability to influence the space encompassing the vehicle . . . ."

United States v. Savarese,

(1st Cir. 2004). "In

the carjacking context, courts have required the victim to have

both a degree of physical proximity to the vehicle and an ability

to control or immediately obtain access to the vehicle."

(emphasis omitted). This is not to say, however, that the

government must prove that the victim was inside of the vehicle.

In Savarese, we recognized with approval that "other circuits have

held that the presence requirement of the carjacking statute was

satisfied when the victim or victims were inside a building and the

stolen vehicle was parked outside the building."

Defendants

contend that there is no evidence on the record that shows they

took the car from the person or presence of Pérez. José's

testimony that Alberto characterized the taking as having been

accomplished "policeman style," defendants argue, was not

sufficient, as it required the jury to guess the phrase's meaning

without further development by the government. However, since

there was evidence presented showing that Pérez had been driving

-15- his usual bolita route in the morning and that later in the

afternoon the car was driven in an unusual manner by a person other

than Pérez, the jury was entitled to conclude that defendants

abducted Pérez while he was driving his bolita route. Given this

evidence as well as the testimony that Pérez was transported in his

vehicle to José's house, a reasonable jury could have also

concluded that Pérez was either in his car at the time of the

carjacking or sufficiently nearby. In either case, the government

met its burden of proof beyond a reasonable doubt as to this

element of § 2119(3).

The second element of the statute, requiring that the

vehicle to be taken "by force and violence or by intimidation,"

does not present as great an evidentiary barrier.

. Indeed, the Supreme Court has indicated that an "empty

threat, or intimidating bluff" is enough. Holloway v. United

States,

(1999). In arguing that the government

presented insufficient proof of this element, defendants argue

along similar lines as above -- namely, that testimony that the car

was obtained "policeman style" is too vague to support a jury

finding on the matter. We disagree.

José explained that he understood the phrase "policeman

style" to mean that "they stopped the car . . . with the weapon,

and they said, this is the police." This was a reasonable

interpretation of the phrase which the jury was entitled to credit.

-16- Having further evidence of the presence of a handgun from José's

testimony, the jury could have reasonably concluded that the

carjacking was performed at gunpoint. Finally, there was also

evidence presented that Pérez was forcibly restrained during the

incident, given the fact that he was handcuffed in the back seat of

his own vehicle. A jury was entitled to conclude that Pérez was

abducted through the "use of force, violence, or intimidation."

The last disputed element of the carjacking offense is

the intent element, which requires that a vehicle be taken with

"intent to cause death or serious bodily harm."

.

It is well-settled that the statute does not refer to a carjacking

which merely happens to result in death. United States v.

Matos-Quiñones,

(1st Cir. 2006) ("[T]his statute

is not a felony murder analog. Even if death results, the statute

requires intent to cause death or serious bodily harm.") (internal

quotation marks omitted). Rather, the statute requires that the

defendant possessed either actual or conditional intent to cause

death or serious bodily harm to the carjacking victim. In

Holloway, the Supreme Court explained that "[t]he intent

requirement of sec. 2119 is satisfied when the Government proves

that at the moment the defendant demanded or took control over the

driver's automobile the defendant possessed the intent to seriously

harm or kill the driver if necessary to steal the car (or,

alternatively, if unnecessary to steal the car)."

.

-17- Even if the defendant did not intend to kill the driver, the intent

element is satisfied if the defendant was willing to kill the

driver to effect the theft of the car. The parenthetical at the

end of the quotation implies that the Court saw a distinction

between killing for its own sake and willingness to kill to effect

the theft, and that it deemed both circumstances as meeting the

intent standard of § 2119.

This actual or conditional intent must be formed "at the

moment the defendant demanded or took control over the driver's

automobile . . . ." Id.; see also United States v. Evans-García,

, 114 (1st Cir. 2003); United States v. Rosario-Díaz,

, 63 (1st Cir. 2000) ("[T]he mental state required by

the statute . . . is measured at the moment that the defendant

demands or takes control of the vehicle.").

Defendants argue that the government presented no

evidence to show that they had formed either an actual or

conditional intent to kill or seriously injure Pérez at the moment

the carjacking occurred. The only evidence on this point, they

contend, points to precisely the opposite conclusion -- that

defendants meant to rob Pérez and ended up killing him after the

carjacking, when he became difficult.10

10 José testified that Gabriel told him, "We had to kill him because it got real difficult for us and he struggled a lot."

-18- We considered very similar facts in Matos-Quiñones. In

that case, the defendants took the victim's car keys and forced

him, at gunpoint, to lie down in the rear of the vehicle, while

they drove away.11 Later, after discovering that the victim was a

sailor, defendants decided to kill him. Matos-Quiñones,

. They stopped in a secluded area, then, after a struggle

prompted by an escape attempt, defendants shot the victim in the

back of the head, killing him.

. Thus, in

Matos-Quiñones, we were faced with a situation in which a carjacker

stole a car, held the owner hostage, and later killed him. These

circumstances raised the question of whether the moment of the

carjacking, at which point the actual or conditional intent must

manifest, could be extended from the initial taking to a later

period in time by virtue of holding the victim hostage. We did not

decide this issue in Matos-Quiñones, however, because the

defendants pleaded guilty. Likewise, we do not see the need to

decide it presently, as we believe that in this case a reasonable

jury had enough evidence to conclude that defendants possessed

either actual or conditional intent to cause the death of Pérez, or

to inflict upon him serious bodily harm, at the moment they took

his vehicle.

11 This seems to correlate with the "policeman style" abduction method used by Alberto and Gabriel.

-19- The evidence on the record, taken as a whole, supports

the inference that defendants intended or were willing to seriously

injure or kill Pérez when they committed the carjacking. For one,

there was evidence presented that defendants used a handgun to

abduct Pérez. It is true that this fact alone would not support a

finding of actual or conditional intent. See Holloway,

-12 n.13 ("[W]e have found no case of a conviction of assault

with intent to kill or murder, upon proof only of the levelling of

a gun or pistol.") (internal quotations omitted). That is not,

however, the full extent of the evidence presented to the jury on

this issue. There was also testimony that could lead a reasonable

jury to conclude that Alberto and Gabriel abducted Pérez while he

was in his own vehicle. Additionally, there was testimony that

Pérez was restrained with handcuffs when he arrived at José's

house. Finally, Pérez's cries for help during his attempted

escape12 lead to the inference that he felt his life was threatened.

This conclusion is reasonable, given defendants' displays of

violence during the ordeal, and their ultimate act of asphyxiating

Pérez.13 Taken in conjunction, and viewing ambiguities in the light

12 José's neighbor Ramos heard Pérez shout "Help, they want to kill me," as he struggled to escape. 13 We do not believe, and, as discussed above, our prior cases do not support, that the act of killing alone satisfies the intent element of § 2119. Common sense, however, dictates that the final act, at the very least, evidences the intent. Cf. United States v. Lebrón-Cepeda,

(1st Cir. 2003) (per curiam) (Howard, J., concurring) ("In my view, we could have affirmed

-20- most favorable to the verdict, this evidence could plausibly lead

a reasonable jury to conclude that Alberto and Gabriel were at

least willing to seriously injure, if not kill Pérez, at the moment

of the carjacking given the evidence that defendants used a

revolver, put Pérez in handcuffs, and placed him in his own car,

were willing to and did use violence to prevent his escape, and

then did actually kill him after an extended period of holding him

hostage. Cf. United States v. Lebrón-Cepeda,

(1st

Cir. 2003) (per curiam) (holding that conditional intent to kill

could be inferred from fact that defendant placed a gun against the

victim's head and threatened him, even though the actual killing

occurred at a later time). We therefore hold that sufficient

evidence was presented to allow a reasonable jury to find that the

government satisfied its burden of proving the intent element of

§ 2119(3).

B. Admission of Alberto's Statements

Gabriel appeals the district court's decision to allow

introduction of Alberto's recorded statements from his telephone

call with his mother. Admission of this evidence, he argues,

violated his rights under the Confrontation Clause of the Sixth

Amendment, as outlined by the Supreme Court precedents of Crawford

[defendant's] conviction simply because he intentionally shot [the victim] in the head at close range during the actus reus, thus manifesting an intention to seriously harm or kill him.").

-21- v. Washington,

(2004), and Bruton v. United States,

(1968).

Gabriel did not properly preserve his Crawford objection,

so our review is for plain error only. See United States v.

Duarte,

(1st Cir. 2001). Since Gabriel did

preserve his Bruton objection at trial, we review the district

court's determination under Bruton de novo. United States v. Vega-

Molina,

(1st Cir. 2005).

The Supreme Court's decision in Crawford stands for the

proposition that "the Confrontation Clause bars admission of

testimonial hearsay in a criminal case unless the declarant is

unavailable and the accused has had a prior opportunity for

cross-examination." United States v. Earle,

(1st

Cir. 2007) (citing Crawford,

). The parties agree

that Alberto was unavailable for cross-examination, as he invoked

his right not to testify. Thus, admissibility of Alberto's

conversation would violate defendant Gabriel's Confrontation Clause

rights unless the statements were either non-testimonial or not

hearsay. Since Gabriel does not challenge whether or not Alberto's

statements were hearsay, we turn to the question of whether they

were testimonial.14

14 Gabriel does not challenge whether or not Alberto's statements were hearsay. Prior to the Supreme Court ruling in Davis v. Washington,

(2006), courts employed an additional line of Confrontation Clause analysis for non-testimonial hearsay. See Horton v. Allen,

(1st Cir. 2004) ("Crawford draws

-22- The Supreme Court provides the following examples to

guide a court's determination of whether an out-of-court statement

is testimonial: Testimonial statements take the form of 1) "ex

parte in-court testimony or its functional equivalent;" 2)

"extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or

confessions;" and 3) "statements that were made under circumstances

which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial."

Crawford,

(internal quotation marks omitted).

Furthermore, this Circuit has stated that, in determining whether

a statement is testimonial, a court should consider whether "an

objectively reasonable person in [the declarant's] shoes would

understand that the statement would be used in prosecuting [the

a distinction between testimonial and non-testimonial hearsay and applies only to the former category of statements."). Thus, when it was handed down, Crawford did not change the test for non- testimonial hearsay, which could only be admitted based on a "'firmly rooted hearsay exception' or [if it bore] 'particularized guarantees of trustworthiness.'" Crawford,

(quoting Ohio v. Roberts,

(1980)). In other words, until Davis, Roberts remained the controlling precedent for judging whether non-testimonial hearsay violated the Confrontation Clause. After Davis, however, non-testimonial hearsay no longer implicates the Confrontation Clause at all. See Earle,

; see also United States v. Rodríguez-Berríos,

, 61 n.4 (1st Cir. 2009). So, a finding that Alberto's conversation was non- testimonial should end the matter, and there is no need to determine whether or not the non-testimonial hearsay qualifies as a firmly rooted exception or if it bears the particularized guarantees of trustworthiness.

-23- defendant] at trial." United States v. Maher,

(1st

Cir. 2006).

Gabriel notes that Alberto was repeatedly warned that his

telephone conversations were recorded. Furthermore, he was

actually aware of this fact, and even stated in that conversation

that he could not say much over the telephone. Thus, Gabriel

argues, a reasonable person in Alberto's shoes would know that the

conversation was being recorded, and would thus expect that

anything he said could be used to prosecute him, making the

statements testimonial pursuant to Maher. See

We believe that

Gabriel's analysis misses the mark, and that Alberto's statements

were not made under circumstances that render them testimonial.

Looking at the examples given by the Supreme Court in

Crawford, it is plain that Alberto's statements to his mother were

not "solemn declarations made to government officials in

circumstances that resemble the repudiated civil-law mode of

interrogation," and thus cannot be treated as testimonial. United

States v. Brito,

(1st Cir. 2005) (Howard, J.,

concurring) (quoting Crawford,

). He did not make

the statements to a police officer, during the course of an

interrogation, or in a structured setting designed to elicit

responses that intended to be used to prosecute him. Rather,

Alberto had a conversation with a close family member without any

intention of assisting in his own prosecution -- in fact, quite the

-24- opposite. Other courts have found accordingly in similar

circumstances. See, e.g., United States v. Manfre,

,

838 n.1 (8th Cir. 2004) ("[Declarant's] comments were made to loved

ones or acquaintances and are not the kind of memorialized,

judicial-process-created evidence of which Crawford speaks.");

Saechao v. Oregon,

(9th Cir. 2007) (unpublished

opinion) (holding that jailhouse conversation over the phone with

an acquaintance was not testimonial, as declarant did not have the

purpose of supplying prosecution with evidence).

Gabriel also challenges the admitted statements under

Bruton. In Bruton, the Supreme Court held that, in a joint trial,

a non-testifying defendant's confession that was "powerfully

incriminating" against a co-defendant could not be admitted, as any

limiting instruction would be inadequate to relieve the

Confrontation Clause problems.

; Furr v. Brady,

(1st Cir. 2006). However, as the companion opinion

explains, the Bruton rule does not apply to non-testimonial hearsay

statements. See Figueroa Cartagena, No. 08-2110. Since we have

determined that the recorded conversation was non-testimonial,

Bruton is not implicated.

We therefore conclude that the recorded conversation was

properly admitted.

-25- C. Prosecutor's Statements During Closing Arguments

Defendant Gabriel enumerates a litany of statements made

by the prosecutor during her closing arguments that he contends

warrant a new trial because they unfairly prejudiced the jury, and

were not overcome by instructions from the judge. He also argues

that the government's case lacked the strength to overcome the

prejudice caused by the prosecutor's individual and combined

closing argument errors. Since Gabriel did not object to these

statements during trial, our review is for plain error only.

United States v. Henderson,

(1st Cir. 2003).

"[Plain] error will not be recognized unless it caused a

miscarriage of justice or seriously undermined the integrity or

public reputation of judicial proceedings."

(internal

quotation marks omitted). A prosecutor's remarks necessitate

reversal of the verdict "only if they so poisoned the well that the

trial's outcome was likely affected."

(internal

quotation marks omitted).

"Even if the remarks are improper, we affirm unless they

prejudiced the defendant." United States v. García-Pastrana,

(1st Cir. 2009). We look to the following factors in

considering prejudice: "(1) the severity of the prosecutory's

misconduct, including whether it was deliberate or accidental;" (2)

the context in which the misconduct occurred; (3) whether the judge

gave curative instructions and the likely effect of such

-26- instructions; and (4) the strength of the evidence against the

defendants."

(quoting United States v. Nelson-Rodríguez,

, 38 (1st Cir. 2003).

First, Gabriel challenges two of the prosecutor's

statements which he contends reflected the prosecutor's own

opinions regarding her witness's credibility. We have held that

"[a] prosecutor improperly vouches for a witness when she . . .

impart[s] her personal belief in a witness's veracity or impli[es]

that the jury should credit the prosecution's evidence simply

because the government can be trusted." United States v.

Pérez-Ruiz,

(1st Cir. 2003); United States v.

Flores-De-Jesús,

(1st Cir. 2009).

Gabriel's challenge under this rubric is to the statement

made by the prosecutor that "José Figueroa-Cartagena comes into

court and tells you under oath." We dispose of this challenge

easily, as the statements that José testified under oath merely

stated a fact and were neither a personal assurance, nor invoked

the prestige of the government. See Pérez-Ruiz,

(finding no improper vouching since prosecutor "neither expressed

her personal opinion regarding the veracity of any witness nor

implied that [the witness] should be trusted because of some

connection to the government"). We thus do not believe the

district court committed plain error in allowing the jury to hear

this statement.

-27- The next statements that Gabriel challenges referred to

another of the prosecutor's witnesses and the victim's wife,

Rosario. Gabriel quotes statements made by the prosecutor at

closing argument and alleges that they impermissibly bolstered

Rosario's credibility. We reproduce the challenged portion of the

closing argument below.15

And she made a mistake referencing the photo spreads, because she had two photo spreads before her at the time. But she clarified that, and I think her testimony was very clear that when she wrote these words, she's referring to the photograph of Félix Gabriel Castro-Davis. "It looks familiar to me. To me, it is a young man who entered my house. I'm not sure, but the young man at that time was thinner. I've seen this kid in barrio San Antonio in Caguas." Compare that photograph of Félix Gabriel Castro-Davis to the photograph of Félix Gabriel Castro-Davis on August 10, 2006. What would that be? Like two to three -- three to four weeks later. Here is Félix Gabriel on the photo spread that [Rosario] saw, and here is the photograph of Félix Gabriel on August 10th, 2006. It seems to me, and I submit to you, that [Rosario] is right on the money. Same guy, just thinner.

We agree with Gabriel that the prosecutor's statements went too far

in this case. The phrases "I think" and "it seems to me," and the

statement that the government witness was "right on the money" were

improper. But see Henderson,

(noting that

"although it is the jury's job to draw the inferences, there is

15 Gabriel only challenged the italicized portions.

-28- nothing improper in the Government's suggesting which inferences

should be drawn") (quoting United States v. Mount,

(1st Cir. 1990). Nevertheless, given the weight of the

evidence against Gabriel, we find that these statements were not

sufficiently prejudicial as to constitute reversible error.

Gabriel also challenges the following statement made by

the prosecutor at closing: "What an incredible, terrible

coincidence for the defendant, that [Rosario's] physical

description of him fits him perfectly." Rosario testified that the

first intruder in her home was tall and skinny and stated that a

photograph of Gabriel "looked a lot like that individual" who broke

into her home, though she could not certainly state it was the

intruder. There is no evidence on the record as to Gabriel's

appearance from which to conclude whether "tall and skinny" fits

well as a description of defendant. However, we do not find this

statement to be significantly prejudicial given Rosario's testimony

that Gabriel's photo "looked a lot like that individual" who

invaded her home.

Gabriel next argues that the prosecutor's statement that

José did not know the victim was a bolitero until defendants told

him so improperly commented on the character of José by implying

that he was not aware of the victim's illegal activities, as he was

of good character and was not familiar with the criminal world. As

-29- above, we do not believe this is the sort of credibility bolstering

that amounts to plain error and would warrant a new trial.

Gabriel also challenges a statement by the prosecutor

that Pérez "knew the streets. This is not the first time he

encountered people like [Alberto] and [Gabriel]." Gabriel alleges

that this statement portrayed the defendants as criminals and

implied they were involved in illegal gambling. While we will not

condone prosecutor statements that malign the character of

defendants, without evidentiary support or in ways not related to

the charges, we do not believe that this statement "so poisoned the

well" that a new trial is required. This statement was also

arguably accurate. There was testimony presented at trial that

Pérez once lived two houses away from Gabriel and Alberto, and

therefore literally knew each other from the streets. José also

testified that the day after the murder, Gabriel told him that

Pérez was a numbers runner.

Gabriel also argues that the prosecutor's statement that

"José . . . said to you that he saw Félix Gabriel Castro-Davis

carrying a revolver" was improper, because José only testified that

he "noticed that [Alberto] had pulled out a weapon and placed it on

top of the car on the right side." While it was improper for the

prosecutor to confuse Félix Alberto Castro-Davis with Félix Gabriel

Castro-Davis, we do not think this lone statement amounted to clear

error.

-30- Gabriel contends that the next error occurred when the

prosecutor stated that there was "not a single shred of evidence"

and "not a single reason" that José would lie, and also stated that

defendants did not attempt to cross-examine José. This statement

was not improper. The prosecutor was commenting on the lack of

impeachment evidence against José, not giving his opinion as to

José's credibility.

Gabriel finally challenges the prosecutor's last

statement to the jury: "And you hold them accountable for what they

did, all three of them. You hold them accountable." We agree with

the government that this amounts to a request from the prosecutor

to render a guilty verdict. The government points us to United

States v. Flaherty, where we stated that "[t]he prosecutor's

statement that the Government would ask the jury to return guilty

verdicts does not bring the Government's credibility to bear on the

case."

(1st Cir. 1981). However, after

Flaherty, the Supreme Court decided United States v. Young, and

held that a prosecutor was "in error to try to exhort the jury to

'do its job' [because] that kind of pressure, whether by the

prosecutor or defense counsel, has no place in the administration

of criminal justice."

(1985); see also United

States v. Mandelbaum,

(1st Cir. 1986) ("There

should be no suggestion that a jury has a duty to decide one way or

the other; such an appeal is designed to stir passion and can only

-31- distract a jury from its actual duty: impartiality."). We thus

find that this statement was improper. However, given the weight

of the evidence presented against Gabriel and the brevity of the

statement, we find that it was not sufficiently prejudicial as to

warrant a new trial.

Even though some of the prosecutor's remarks were

improper, we do not think they so poisoned the well as to require

a new trial. United States v. Vázquez-Botet,

(1st

Cir. 2008). We take note, and register our concern, with the fact

that there was no contemporaneous objection or request for curative

instructions, thus depriving the district judge of the opportunity

to provide special or additional instructions with regards to the

closing statements, and consequently, failing to provide defendants

of the type of diligent defense to which they are entitled.

However, the court's general closing instructions did properly

counsel the jury regarding what constituted evidence and the fact

that they were the sole judges of credibility. The instructions

specifically reminded jurors they were the "sole judges of the

credibility of the witnesses" and that "arguments and statements of

counsel are not evidence." Given the evidence presented at trial

from multiple witnesses, any potentially harmful effect from the

prosecutor's closing was safeguarded by the district court's final

jury instructions. See United States v. Mejía-Lozano, 829 F.2d

-32- 268, 274 (1st Cir. 1987) (finding that the district judge's

standard instruction was sufficient to overcome any prejudice).

D. Sentencing Errors

Alberto and Gabriel argue that the district court erred

when it sentenced them to a mandatory term of life imprisonment for

a murder that they were neither charged with nor convicted of

committing and seek that their sentence be vacated and remanded.16

Because both Alberto and Gabriel failed to object during the

sentencing hearing to the district court's misstatement regarding

the statutory sentence for carjacking, our review is for plain

error. United States v. González-Castillo,

, 82 (1st

Cir. 2009). Under plain error review, for this Court to correct an

error not objected to in the district court, "there must be an

'error' that is 'plain' and that 'affects substantial rights.'"

United States v. Olano,

(1993) (alteration

omitted). If those three factors are all met, this Court has

discretion to correct the error if it "seriously affects the

fairness, integrity, or public reputation of judicial proceedings."

16 Gabriel failed to make this argument in his brief, which would normally mean it would be waived. See United States v. Zannino,

(1st Cir. 1990). On October 28, 2009, after oral argument had concluded, Gabriel filed a motion with this court requesting to join and adopt Alberto's argument that the district court erred in sentencing the defendant to a mandatory life term for murder where he was convicted of a carjacking resulting in death. Because we find that Alberto and Gabriel are in the same legal and factual position, and that the interests of justice compel it, we grant Gabriel's motion.

-33- Id. at 736 (internal quotation marks and alterations omitted). We

find that all four requirements are met in this case.

The government concedes that the district court committed

plain error during the sentencing hearing and agrees that this

error warrants vacating Alberto's -- and by adoption, Gabriel's --

sentence and remanding the case to the district court for

resentencing. The district court referred to the defendants' crime

of conviction as "first degree murder in the context of

carjacking." The district court compounded its mistake by also

stating on more than one occasion that the statutory penalty for

the crime was life imprisonment. This was incorrect since the

statutory penalty for carjacking resulting in death is "any number

of years up to life."

(3).

Defendants also argue, and the government does not

dispute, that this error affected their substantial rights. It

appears that because the district court thought that the statutory

sentence was life imprisonment, it felt bound to impose a life

sentence. We agree that this affected the outcome of the

proceedings below, and additionally, that the district court's

error threatened to compromise the fairness, integrity, and public

reputation of the proceedings. We thus hold that Alberto and

Gabriel's sentence should be vacated and remanded for resentencing.

-34- III. Conclusion

For the reasons discussed, we affirm the judgment against

Félix Alberto Castro-Davis and Félix Gabriel Castro-Davis's but

reverse and remand their sentences.

Affirmed, Reversed and Remanded.

-35-