United States Court of Appeals For the First Circuit

No. 15-1574

UNITED STATES OF AMERICA,

Appellee,

v.

MIGDOEL BERRÍOS-BONILLA,

Defendant, Appellant.

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

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

Before

Howard, Chief Judge, Torruella and Lipez, Circuit Judges.

Rafael F. Castro-Lang, for appellant. Nicholas Warren Cannon, 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.

May 13, 2016 TORRUELLA, Circuit Judge. The police found a machinegun

under the passenger seat of a truck belonging to defendant-

appellant Migdoel Berríos-Bonilla ("Berríos"). After fleeing the

scene of the crime, Berríos contacted one of the individuals who

had been in the car with him and told her to lie about knowing

him. Berríos eventually turned himself in and a jury convicted

Berríos for two weapons possession counts under

,

subsections (g)(1) and (o)(1), as well as witness tampering in

violation of

(b)(1). Appealing from the United

States District Court for the District of Puerto Rico, Berríos

challenges the sufficiency of the evidence supporting his

convictions and alleges several procedural errors. Unconvinced

by Berríos's arguments, we affirm.

I. Background

On the night of August 16, 2014, Berríos lent his Ford

pickup truck to Rolando Torres-Fernández ("Torres"). Torres

picked up five other men and met up with María Rivera-Mulero

("Rivera") and Verónica Álamo-Gómez ("Álamo") at a bridge.

Accompanied by the five unidentified males, Torres drove Berríos's

truck to a bar to meet Berríos, while Rivera and Álamo followed in

Rivera's car.

Berríos, Torres, Rivera, Álamo, and two of the

unidentified men left and drove in Berríos's truck to a second

-2- bar. At the second bar, Berríos and Álamo danced and Álamo felt

something hard around the back of Berríos's waist although she

could not tell what it was. The group then left the bar to go to

a restaurant. After eating, the two unidentified men (who had

been sitting in the front driver and passenger seats) were dropped

off.

Torres drove the remaining members of the group to a

motel: Rivera was in the front passenger seat, Berríos sat behind

the driver seat, and Álamo sat behind the passenger seat. Once

they arrived at the motel, Torres exited and began talking to a

motel employee while Berríos, Álamo, and Rivera waited in the car.

Berríos left the truck when he noticed Torres and the motel

employee arguing. Berríos asked Torres what he was doing and said

they should leave. The group drove away from the motel (sitting

in the same seats of the car as before), but the motel employee

called the police to report the incident1 and gave a description

of Berríos's truck.

Three Puerto Rico Police Department officers responded

to the call. The officers spotted a truck matching the dispatcher's

description and followed it until it stopped in front of a

1 Although not directly discussed at Berríos's trial, Torres was charged with assault and robbery for the events that occurred at the motel.

-3- restaurant. Álamo had spilled food on herself and exited the

truck from the rear passenger-side door to clean up. One of the

officers, Ángel Hernández-Nieves ("Officer Hernández"), exited the

police car and began approaching the truck. As Officer Hernández

neared, he saw Berríos stick his head out of the open rear

passenger-side door and look around. Officer Hernández then

announced himself and told everyone to exit the vehicle. Berríos

fled, exiting from the rear driver-side door. Officer Hernández

pursued Berríos but was unable to catch him.

Álamo, Rivera, and Torres remained at the scene. A

second officer asked Torres to exit the vehicle and stand at the

back of the truck on the passenger side. At that point, the

officer noticed through the open rear passenger-side door a firearm

sticking out from underneath the passenger seat. Upon further

examination, the police concluded it was a Glock pistol modified

to shoot automatically. The police subsequently searched

Berríos's truck and found two magazines under the same seat as the

pistol, Berríos's driver's license inside a pocket on the rear

passenger-side door, and a cellphone inside a pocket on the rear

driver-side door. They arrested Álamo, Rivera, and Torres.

Álamo was released and subsequently spoke with Berríos

twice over the phone. In one conversation, Berríos told Álamo

"[t]hat if [she] was asked about him [she] should say [she] didn't

-4- know who he was" and that "everything is [Torres], is from him."

Berríos eventually turned himself in to the police on August 25,

2014.

Berríos was charged with possession of a firearm by a

prohibited person and possession of a machinegun as well as witness

tampering. A jury found Berríos guilty on all counts. This

timely appeal followed.

II. Sufficiency Claims

Berríos first argues that the Government presented

insufficient evidence to convict him on all three counts. This

court "review[s] the sufficiency of the evidence for a conviction

de novo," drawing "all reasonable inferences in the light most

favorable to the prosecution." United States v. Rosado-Pérez,

(1st Cir. 2010). We conclude Berríos has failed to

meet this rigorous standard.

A. Weapons Charges

Berríos stipulated to all but the knowledge element of

his weapons possession charges.2 He argues, as he did at trial,

2

(g)(1) makes it unlawful

for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

-5- that the Government failed to prove beyond a reasonable doubt that

he knowingly possessed the machinegun found in his vehicle.

"Knowing possession of a firearm may be proved through

either actual or constructive possession." United States v.

Williams,

(1st Cir. 2013). An individual

constructively possesses something when he or she "knowingly has

the power and intention at a given time to exercise dominion and

control over an object, either directly or through others."

United States v. Ocampo-Guarin,

(1st Cir. 1992)

(quoting United States v. Lamare,

(1st Cir. 1983)).

A jury may infer knowledge from circumstantial evidence. United

States v. Ridolfi,

(1st Cir. 2014). "For

constructive possession of a firearm in particular, the requisite

knowledge and intention can be inferred from circumstances 'such

as a defendant's control over the area where the contraband is

found . . . .'"

(quoting United States v. McLean,

(1st Cir. 2005)). In such a case, the record "must

contain evidence of 'some action, some word, or some conduct that

links the individual to the [firearm] and indicates that he had

(o)(1) makes it "unlawful for any person to transfer or possess a machinegun" subject to certain exceptions not relevant here.

-6- some stake in it, some power over it.'"

(alteration in

original) (quoting McLean,

).

Contrary to Berríos's arguments, the Government did not

rely on his mere proximity to the weapon to prove possession.

Rather, it presented strong circumstantial evidence connecting

Berríos to the machinegun and ruling out the other potential

sources of the weapon. Drawing all inferences in the light most

favorable to the prosecution, the timeline of events unfolded as

follows: the police pulled up behind Berríos's vehicle; Álamo

exited the car from the rear passenger-side door; Berríos stuck

his head out the rear passenger-side door to look around; Berríos

saw Officer Hernández; and Berríos ran out the rear driver-side

door. This sequence of events places Berríos as the last person

to occupy the rear passenger seat, close to where the police found

the machinegun. Moreover, the Government presented additional

evidence connecting Berríos to the rear passenger seat, including

that his driver's license was in a pocket inside the rear passenger

side door. A reasonable jury could accept this testimony and

conclude that Berríos saw the police, became worried about them

finding the machinegun on his person, and placed it in the most

convenient hiding place inside the car before he fled.

This conclusion is further strengthened by two

observations made by Álamo: (1) that she felt an unidentified hard

-7- object around the back of Berríos's waist earlier that night and

(2) that she had not seen the machinegun until her arrest. Álamo

sat in the rear passenger seat two times before the gun was

discovered -- on the drive from the second bar to the restaurant

and from the restaurant to the truck's ultimate stopping place.

The police testified (and the trial exhibits -- photographs of the

truck's interior -- show) that the machinegun was not fully under

the passenger seat, but sticking out part of the way. The fact

Álamo did not notice the machinegun earlier strongly suggests it

was not under the passenger seat until she exited the vehicle and

Berríos sat there. This, in turn, helps rule out any of the

unidentified men or Torres and Rivera (who were sitting in the

front seats) as the machinegun's owner.

We also note that the Government presented evidence of

Berríos's consciousness of guilt. Berríos argues that he fled

because he was on probation and did not want to be associated with

Torres's actions at the motel. We reject Berríos's contention

that an innocent explanation was equally as likely as a guilty one

in light of the above-mentioned evidence. See Bourjaily v. United

States,

(1987) ("[I]ndividual pieces of

evidence, insufficient in themselves to prove a point, may in

cumulation prove it."). We also note that Berríos's subsequent

-8- attempt to have Álamo deny knowing him further strengthens the

inference that Berríos was conscious of his guilt.

Finally, we reject Berríos's argument that the

numerousness of the truck's occupants created a reasonable doubt

as to who placed the machinegun under the passenger seat. The

Government presented evidence that the machinegun did not belong

to Torres because another firearm was found under the driver's

seat. As we previously stated, the timeline of events creates a

reasonable inference that the machinegun was not under the

passenger seat before the police arrived and was likely placed

there by Berríos. We also find it dubious that those men would

have left the machinegun there after they were dropped off.

"[F]actfinders may draw reasonable inferences from the evidence

based on shared perceptions and understandings of the habits,

practices, and inclinations of human beings," United States v.

Ortiz,

(1st Cir. 1992), and people are generally

not inclined to forget or store machineguns in cars that do not

belong to them. Despite the truck's numerous occupants, a

reasonable jury could have concluded that Berríos placed the

machinegun under the passenger seat and convicted him of both

weapons possession offenses.

-9- B. Witness Tampering

We turn now to Berríos's witness tampering conviction.

To convict Berríos of witness tampering, the jury needed to find

that Berríos "corruptly persuade[d] another person, or attempt[ed]

to do so, . . . with intent to influence, delay, or prevent the

testimony of any person in an official proceeding [or] cause or

induce any person to withhold testimony."

(b).

Berríos does not contend that calling Álamo and asking

her to tell the police that she did not know him would not qualify

as witness tampering. He argues only that the jury should not

have believed Álamo's testimony based on her failure to mention

him asking her to lie in an earlier interview with a federal agent

and that it was implausible that he told Álamo to lie but not

Rivera (the latter of whom did not testify). These arguments go

to Álamo's credibility as a witness and "it is not the appellate

court's function to weigh the evidence or make credibility

judgments." Ortiz, 966 F.2d at 711. Viewing Álamo's testimony

"in the light most favorable to the prosecution," a reasonable

jury could have concluded that Berríos spoke to her and attempted

to influence her testimony. Rosado-Pérez,

. Thus,

we affirm on this charge as well.

-10- III. Motion to Play Tape

In addition to his sufficiency challenge, Berríos also

claims that the trial court impaired his right to cross-

examination. Specifically, Berríos argues that the district court

should have allowed him to introduce an audio recording of a

September 2, 2014, interview between Álamo and a federal agent as

impeachment evidence. During this interview, Álamo did not

mention that Berríos had told her to lie about knowing him.

Berríos sought to use this omission to impeach Álamo's credibility

and moved to admit excerpts of an audio recording of the interview

(which was in Spanish) and a translated transcript during his

cross-examination. After listening to the tape, the district

court determined that Berríos could show Álamo the interview

transcript whenever she made contradictory statements and ask her

if the transcript showed she told the federal agent something

different. Nonetheless, the district court ruled against playing

the tape.

"The Sixth Amendment protects a defendant's right to

effective cross-examination of key adverse witnesses." United

States v. Martínez-Vives,

(1st Cir. 2007). We

engage in a two-step review in evaluating challenges to a trial

court's limitation of a cross-examination.3

First, we review

3 For purposes of review we assume, without deciding, that

-11- de novo to "determine whether [the] defendant 'was afforded a

reasonable opportunity to impeach adverse witnesses' consistent

with the Confrontation Clause."

(quoting United States v.

Callipari,

(1st Cir. 2004), vacated and remanded

on other grounds,

(2005)). If that threshold is

met, we review the specific limitation imposed by the trial court

on the defendant's cross-examination for an abuse of discretion.

Id. Trial courts may restrict cross-examination to prevent "undue

prejudice, confusion of the issues, witness badgering, redundancy,

or questioning that appears to be of marginal relevance." United

States v. Vega-Molina,

(1st Cir. 2005).

Under step one of this analysis, Berríos was afforded a

reasonable opportunity to impeach Álamo on cross-examination.

Berríos asked Álamo if she mentioned Berríos's request for her to

lie to the federal agent who interviewed her on September 2. After

being shown the interview transcript, Álamo stated she had not.

There is no doubt that Berríos was able to impeach Álamo and

Berríos does not argue otherwise. Rather, he argues only that his

ability to do so was limited because he was not able to play the

tape. This claim we review only for abuse of discretion.

Berríos's claim was adequately preserved.

-12- We do not believe the district court abused its

discretion in light of the specific request Berríos made. Berríos

did not ask the district court to play the entire tape or to play

the tape in a manner similar to how the transcript was used (i.e.,

playing short snippets and asking Álamo if her testimony was

different from what she said on the tape). Rather, he asked the

district court to play the portion of the interview relating to

the obstruction charge. Berríos argues that the district court

should have allowed him to play the tape of the interview because

it was important for the jury to hear Álamo's tone to judge her

credibility -- specifically, to hear that Álamo was not afraid and

withholding information out of fear. Even assuming that hearing

Álamo's tone could have been helpful for the jury, we think the

district court properly balanced this interest against the

Government's valid hearsay objections and its own concerns about

completeness. The Government's motion stated that it opposed the

district court playing only the parts of the tape that "contain[ed]

self-serving hearsay" -- namely Berríos proclaiming his innocence

to Álamo. Berríos fails to cite an evidentiary rule under which

these statements would have been admissible. Moreover, we note

that Berríos requested that the district court not play the entire

tape because Álamo also made statements that suggested she was

afraid of Berríos during the interview. The district court also

-13- expressed concern that playing only Berríos's requested portion of

the tape would prejudice the Government. Given these concerns,

the district court properly weighed the potential for jury

confusion and prejudicial impact in denying Berríos's motion to

play the tape.

Berríos argues this holding would contradict our

decision in United States v. Meises,

(1st Cir. 2011).

It is true that in Meises we expressed concerns about the jury's

ability to assess witness credibility based on a district court's

decision to not play an audio tape.

. Meises,

however, involved a dispute between the defendant and the

government about why incriminatory statements allegedly made by

the defendant (as testified to by a confidential informant) could

not be heard on the taped conversation -- the government argued

the statements were inaudible due to malfunctioning recording

equipment while the defendant argued he never said them.

We

viewed the quality of the audio recording as potentially important

to the defendant's ability to respond to the government's argument.

In other words, Meises involved a dispute about the recording

itself. Berríos's case does not involve such a dispute. Thus,

the helpfulness of the tape itself was less, and in light of the

concerns noted by the district court, the potential for jury

-14- confusion and prejudice was higher. We find no abuse of

discretion.4

IV. Jury Instructions

Finally, Berríos contends that the district court's jury

instructions contained two errors. The parties disagree over how

to view Berríos's claims and the corresponding standard of review.

Berríos frames the district court's decisions as refusals to give

a requested instruction, which we review de novo. See United

States v. Baird,

(1st Cir. 2013). The

Government, however, argues that the district court gave Berríos's

requested instruction and his arguments concern the district

court's phrasing, which we review for abuse of discretion. See

. Because Berríos's challenge fails even if we apply

the standard of review most favorable to him, we assume without

deciding that the district court refused his requested instruction

and our review is de novo. See United States v. Rivera-González,

(1st Cir. 2016).

In determining whether a district court's refusal to

give a jury instruction is reversible error, "we look to see

4 In passing, Berríos argues hearing Álamo's tone during her interview was relevant evidence improperly excluded by the district court. We deem this argument waived for lack of development. Rodríguez v. Municipality of San Juan,

(1st Cir. 2011).

-15- whether the requested instruction was '(1) correct as a matter of

substantive law, (2) not substantially incorporated into the

charge as rendered, and (3) integral to an important point in the

case.'" United States v. Duval,

(1st Cir. 2007)

(quoting White v. N.H. Dep't of Corr.,

(1st Cir.

2000)). Neither of Berríos's claims pass this test.

A. "Constructive Possession" Instruction

First, Berríos claims that the district court should

have instructed the jury that "the mere fact that the firearm was

found in the defendant's vehicle is insufficient by itself to

establish actual or constructive possession." Without this

instruction, Berríos perceives a risk that the jury concluded he

possessed the machinegun merely because it was found in his truck.

We agree with the Government that Berríos's claim fails

because his proposed instruction was substantially incorporated

into the instructions the district court gave. This court's

decision in United States v. Duval is particularly instructive.

In that case, we found no reversible error where the trial court

refused to instruct the jury that "knowledge alone . . . [or] mere

presence in the vicinity of the object is insufficient to prove

possession." Duval,

. The instructions explained

that (1) constructive possession included both the "power and

intention to exercise control or domination and control over

-16- something" and (2) the jury needed to find that the defendant

"knowingly possessed the firearms."

. We viewed these

instructions as sufficient to prevent the jury from "convict[ing]

based on [the defendant's] mere knowledge of the firearms."

The district court's instructions in Berríos's case

cleared this threshold. As in Duval, the district court defined

constructive possession as when a person "has both the power and

the intention to exercise control over something" and instructed

that the jury needed to find that Berríos "knowingly associated

himself with the crime charged." Moreover, the district court

told the jury that "[m]erely being present at the scene of a crime

or merely knowing that a crime is being committed or is about to

be committed is not sufficient conduct to find" guilt. The

district court's instructions "plainly instructed [the jury] that

it needed to find knowing possession" and did not allow the jury

to find Berríos guilty based simply on his ownership of and

presence in the vehicle in which the machinegun was found. Id.5

5 Berríos makes two additional arguments that we can quickly dismiss. First, Berríos argues the risk that the jury convicted him based on his ownership of the truck was compounded by the district court explaining actual possession to the jury by saying "I am in possession of a cell phone right now, and a pen in my pocket, in my shirt. That's actual possession." The district court preceded this statement by defining actual possession as requiring "direct physical control." This remark did not invite the jury to conflate actual possession with ownership.

Second, Berríos argues that the district court's failure to

-17- B. "Weaker or Less Satisfactory Evidence" Instruction

Next, Berríos argues that the district court should have

instructed the jury that "[i]f a party offers weaker or less

satisfactory evidence when stronger and more satisfactory evidence

should have been produced at trial, you may, but are not required

to, consider this fact in your deliberation." Berríos views this

instruction as important to two types of evidence the Government

failed to produce. First, Berríos argues that if the jury had

been given this instruction, it would have been able to draw an

inference in his favor based on the Government's failure to have

the machinegun tested for his fingerprints. Second, Berríos

argues that the jury would have drawn an inference in his favor

from the Government's failure to present Rivera as a witness.

This claim also falters because Berríos's proposed

instruction was already substantially incorporated into the charge

as rendered. The district court told the jury that "[a] reasonable

doubt may arise not only from the evidence presented, or produced,

give his requested instruction was particularly prejudicial because "[t]he prosecutor during his closing argument requested the jury find [Berríos] guilty because the vehicle belonged to him so they could infer [the machinegun] was his." Although the prosecutor noted Berríos's ownership of the truck, the focus of his argument was on placing Berríos in the rear passenger seat right before the machinegun was discovered. The prosecutor did not invite the jury to convict Berríos solely based on his ownership of the truck.

-18- but also from a lack of evidence." (Emphasis added). Based on

this instruction, we fail to see how the jury was prevented from

understanding that it could find a reasonable doubt based on the

lack of fingerprint evidence connecting Berríos to the machinegun

or corroborating testimony from Rivera.

Our conclusion is further bolstered by our case law

regarding "missing evidence" instructions. Such instructions tell

the jury that it may draw an adverse inference "when a party has

exclusive control over relevant, noncumulative evidence," yet

fails to produce it. United States v. Rose,

(1st Cir. 1997); see also United States v. St. Michael's Credit

Union,

(1st Cir. 1989) (describing "missing

witness" instruction). In United States v. Rose, we concluded a

district court did not commit reversible error by declining to

give such an instruction based on the government's failure to

collect fingerprints on evidence in its possession. Rose,

. This instruction, in our view, was unnecessary

because the defendant's counsel was "free to argue that, in the

absence of [fingerprint evidence], the government had not

sufficiently linked [the defendant] to the crime."

Here,

Berríos did in fact argue that the Government's case was full of

holes due to its failure to produce fingerprints or Rivera's

-19- testimony. We thus view Berríos's requested instruction as

unnecessary and find no reversible error.6

V. Conclusion

For the foregoing reasons, we affirm Berríos's

convictions.

Affirmed.

6 Berríos also argues we should reverse for cumulative error. Finding no errors, we decline. United States v. Stokes,

(1st Cir. 1997) ("[C]umulative-error analysis is inappropriate when a party complains of the cumulative effect of non-errors.").

-20-