United States Court of Appeals For the First Circuit

No. 18-2106

UNITED STATES OF AMERICA,

Appellee,

v.

ADAMS JOEL FORTY-FEBRES, a/k/a Adams Forty-Febres,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Ovidio E. Zayas-Pérez for appellant. Gregory B. Conner, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

December 8, 2020 LYNCH, Circuit Judge. In 2018, a jury convicted Adams

Joel Forty-Febres of one count of stealing a motor vehicle in

violation of

and one count of brandishing a

firearm in violation of

(c)(1)(A)(ii) for a

carjacking committed on November 5, 2015, in Canóvanas, Puerto

Rico. Forty-Febres argues that the evidence at trial was

insufficient to support his conviction, that the district court

abused its discretion in rulings related to his co-defendant's

testimony, and that the jury's verdict was inconsistent. We

affirm.

I. Facts

There were two carjackings on November 5, 2015. The

first occurred at around 9:30 PM. Pamela Mena-Varella, the victim,

owned a mint green 2005 Toyota Corolla. She worked at a store in

an outlet mall. At trial, she testified that, after leaving work,

she walked to her car in the mall parking lot. She got in, turned

it on, and began backing out of her parking spot. She said she

then noticed two men walking toward her. One of the men was

pointing a gun at her. She said that before she could drive away,

the man with the gun came up to the window of her car and said,

"you either get out of the car or I'll shoot your head off." She

testified that the man with the gun had dark lips, pointed ears,

bangs, and a long rat tail. He was wearing a red and white Chicago

Bulls shirt, short black pants, and black tennis shoes. She said

- 2 - the other man had a lot of hair and was wearing a gray, long-

sleeved shirt with black pants. As instructed, Mena-Varella got

out of her car. The two men got in and drove away.

The second carjacking occurred approximately thirty

minutes later in the same neighborhood. Delmarie Muriel-Colón

testified that, on November 5, 2015, she was picking up her son.

He was with his paternal grandparents and she drove to their house

to pick him up. Their house was about a five-minute drive from

the store where Mena-Varella worked. Muriel-Colón said that, after

arriving, she stopped in front of the gate to the house and waited

for it to open. She noticed a mint green Toyota Corolla coming

down the street. She knew the car was a Toyota Corolla because

she was also driving a Toyota Corolla. The street was a dead end,

and she said that as she was waiting, she saw the same Corolla

pass her again going in the opposite direction. She picked up her

son and started driving home. She said she made two turns before

noticing that a car was following her very closely. She kept

driving until a mint green Toyota Corolla crossed in front of her

and blocked her way. She testified that a man got out of the

passenger side of the Corolla, pointed a gun at her, and ordered

her out of the car. She said that the area was well lit and that

she could see the man with the gun. She described him as having

dark skin and dark, unruly hair and said he was wearing a t-shirt

and basketball shorts. She said he had "a penetrating look" she

- 3 - "can't forget." Muriel-Colón's son, who had been seated in the

back of the car, jumped into her lap. They got out of the car.

The man with the gun got in the car and drove away, following the

mint green Corolla.

Six days later, on November 11, 2015, the police found

Mena-Varella's car. They contacted Mena-Varella and asked her to

identify her carjacker in a lineup. At the lineup, she said Forty-

Febres was the man who had pointed the gun at her and ordered her

out of the car. She also identified Forty-Febres at trial.

Additionally, Mena-Varella identified Forty-Febres's accomplice at

trial as David Alexander Vázquez-De León.

The police also found Muriel-Colón's car, which had been

destroyed. Like Mena-Varella, Muriel-Colón identified Forty-

Febres in a lineup as the man who had pointed the gun at her and

ordered her out of her car. She also identified him as her

carjacker at trial.

II. Procedural History

Forty-Febres and Vázquez-De León were indicted on four

counts related to the two carjackings: (1) violating

by carjacking Muriel-Colón; (2) brandishing a firearm to

steal Muriel-Colón's car in violation of

(c)(1)(A)(ii); (3) violating

by carjacking

Mena-Varella; and (4) brandishing a firearm to steal Mena-

Varella's car in violation of

(c)(1)(A)(ii).

- 4 - The trial began on May 15, 2018. Forty-Febres and

Vázquez-De León were set to be tried together, but after the first

day of trial, Vázquez-De León pleaded guilty to the two carjacking

counts. The government dismissed the two counts of brandishing a

firearm against him. During his change-of-plea hearing, Vázquez-

De León claimed not to know Forty-Febres. Forty-Febres wanted

Vázquez-De León to testify in his defense. Vázquez-De León later

invoked his Fifth Amendment right against self-incrimination and

did not testify at Forty-Febres's trial. The judge instructed the

jury to draw no inferences from the fact that Vázquez-De León was

no longer at the defense table.

Both Mena-Varella and Muriel-Colón testified for the

prosecution as described earlier. The government called three

police officers to testify about their investigations and

introduced evidence that both Mena-Varella's and Muriel-Colón's

Toyota Corollas were manufactured in Japan and moved through

interstate commerce.

Forty-Febres called one police officer to testify that

fingerprints found on Mena-Varella's Corolla did not match Forty-

Febres's fingerprints. He called two additional witnesses -- his

ex-fiancée and her mother -- to testify that he was with them on

the night of November 5, 2015.

The jury returned its verdict on May 22, 2018. It found

Forty-Febres guilty of carjacking Muriel-Colón and brandishing a

- 5 - firearm while doing so. It acquitted him of the charges related

to the carjacking of Mena-Varella.

Forty-Febres appeals from the verdict against him for

the charges related to the Muriel-Colón carjacking.

III. Legal Analysis

Forty-Febres makes three arguments on appeal. First, he

says that the evidence at trial was insufficient to support his

conviction. Next, he says that the district court abused its

discretion by refusing to delay the trial until Vázquez-De León

was sentenced and by allowing Vázquez-De León to assert his Fifth

Amendment right. Third, he argues that the fact that the jury

acquitted him of one carjacking but convicted him of the other

makes the jury's verdict inconsistent.

A. The Evidence Was Sufficient to Support Forty-Febres's Conviction

In reviewing sufficiency-of-the-evidence challenges,

"we consider whether any rational factfinder could have found that

the evidence presented at trial, together with all reasonable

inferences, viewed in the light most favorable to the government,

established each element of the particular offense beyond a

reasonable doubt." United States v. Ridolfi,

(1st

Cir. 2014) (quoting United States v. Rodríguez,

(1st

Cir. 2013)).

- 6 - Forty-Febres was convicted of the carjacking of Muriel-

Colón under

. The crime has four elements: (1)

taking or attempting to take "from the person or presence of

another"; (2) "by force and violence or by intimidation"; (3) with

"intent to cause death or serious bodily harm"; (4) "a motor

vehicle that has been transported, shipped, or received in

interstate or foreign commerce."

; see also United

States v. Velázquez-Aponte,

(1st Cir. 2019).

Forty-Febres argues that there was insufficient evidence to

conclude beyond a reasonable doubt that these elements were

satisfied. He says that no DNA or fingerprint evidence at trial

placed him at the crime scene, that he did not meet Muriel-Colón's

initial description of the man who carjacked her, and that the

testimony of Forty-Febres's ex-fiancée and her mother showed that

he was with them on the night of November 5, 2015. We hold that

a reasonable factfinder could have found that the evidence at

trial, viewed in the light most favorable to the government,

established each of these elements beyond a reasonable doubt.

As to the first element, a reasonable factfinder could

have found Muriel-Colón's testimony at trial sufficient to

establish that Forty-Febres was the person who took her car from

her. Muriel-Colón testified at trial that it was Forty-Febres who

carjacked her. She identified him at the trial and said that he

was the man who got out of the mint green Toyota Corolla and

- 7 - pointed a gun at her. She said she could see him clearly. She

described his appearance at trial and said that she "can't forget

his look." She also identified Forty-Febres in a lineup after her

car was stolen.

There was other evidence corroborating Muriel-Colón's

trial testimony that Forty-Febres was her carjacker. Mena-Varella1

said that her mint green Toyota Corolla was stolen at around 9:30

PM, thirty minutes before Muriel-Colón was carjacked by someone

driving a mint green Corolla. Mena-Varella testified that Forty-

Febres, whom she had identified at a lineup and at trial, was one

of the men who had stolen her car. The two carjackings occurred

about a five-minute drive away from each other. It is reasonable

to infer that Mena-Varella's car was later used in the carjacking

of Muriel-Colón.

Muriel-Colón's testimony also supports a finding that

the second and third elements of the crime were met. She said

that Forty-Febres came up to the door of her car, pointed a gun at

her, and ordered her out of her vehicle. From this testimony, a

reasonable factfinder could infer that Forty-Febres, by aiming a

deadly weapon directly at Muriel-Colón while stealing her car,

1 The jury did not convict Forty-Febres on the counts related to Mena-Varella's carjacking. But sufficiency-of-the- evidence review for the counts on which a defendant was convicted is "independent of the jury's determination that evidence on another count was insufficient." United States v. Powell,

(1984).

- 8 - took her vehicle through force or intimidation and with the intent

to cause death or serious bodily harm. This same evidence also

supports Forty-Febres's conviction for brandishing a firearm under

(c)(1)(A)(ii).

Finally, the prosecution certified that Muriel-Colón's

Toyota Corolla was manufactured in Japan. Her car had thus "been

transported, shipped, or received in interstate or foreign

commerce,"

, satisfying the final element of the

crime.

Forty-Febres's argument that the evidence at trial was

insufficient because the government did not present DNA or

fingerprint evidence placing him at the crime scene goes nowhere.

"[T]he fact that the government did not present certain kinds of

evidence does not [necessarily] mean that there was insufficient

evidence for conviction." United States v. Rivera-Rodríguez,

(1st Cir. 2010) (second alteration in original)

(quoting United States v. Liranzo,

(1st Cir.

2004)). Viewed in the light most favorable to the verdict, a

reasonable factfinder could have found that the victims' testimony

at trial described earlier was sufficient to convict Forty-Febres

beyond a reasonable doubt.

Forty-Febres's other two arguments are similarly

unavailing. He says that he did not meet Muriel-Colón's original

- 9 - description of the man who pointed a gun at her2 and that the time

of day prevented Muriel-Colón from getting a good look at her

carjacker. He also argues that his ex-fiancée and her mother

provided him with an alibi. Whether the jury believed Muriel-

Colón's testimony identifying Forty-Febres or the testimony that

Forty-Febres was with his ex-fiancée and her mother turns on the

witnesses' credibility. In reviewing a challenge to the

sufficiency of the evidence, "[i]t is not our role to assess the

credibility of trial witnesses or to resolve conflicts in the

evidence" and "we must resolve all such issues in favor of the

verdict." United States v. Gaudet,

(1st Cir. 2019)

(quoting United States v. Hernández,

, 66 n.5 (1st Cir.

2000)). The jury, having heard all of the evidence at trial,

credited Muriel-Colón's identification and did not believe

testimony about Forty-Febres's alibi. It was entitled to do so.

B. The District Court Did Not Abuse Its Discretion

Forty-Febres next argues that the district court abused

its discretion in two ways: by refusing to compel Forty-Febres's

co-defendant to testify and by denying Forty-Febres's motion to

delay the trial until after his co-defendant was sentenced. We

find no abuse of discretion.

2 In his brief to us, Forty-Febres does not explain how or why Muriel-Colón's initial description was inaccurate.

- 10 - "[A] witness may invoke the Fifth Amendment if

testifying might incriminate him on direct or cross-examination,

despite a defendant's Sixth Amendment interests in presenting that

testimony." United States v. Ramos,

(1st Cir.

2014). The burden on the witness is "not a particularly onerous"

one. United States v. Castro,

(1st Cir. 1997).

He must show that there is a "reasonable possibility that, by

testifying, he may open himself to prosecution."

When a

district court rules favorably on a witness's invocation of his

Fifth Amendment right, we review its ruling for abuse of

discretion. See

Under this standard, we will reverse the

district court's ruling "only when it is 'perfectly clear . . .

that the answers [sought from the witness] cannot possibly

incriminate.'" United States v. Acevedo-Hernández,

(1st Cir. 2018) (quoting United States v. De La Cruz,

(1st Cir. 1993) (alterations in original)).

At Vázquez-De León's change-of-plea hearing, he told the

trial judge that he did not know Forty-Febres. Forty-Febres wanted

Vázquez-De León to repeat this statement at trial. But Mena-

Varella testified that Forty-Febres and Vázquez-De León were the

two men who carjacked her. She identified both men at trial.

Mena-Varella's testimony directly contradicts any statement that

Vázquez-De León did not know Forty-Febres. On the record here, it

is reasonable to suspect that, at trial, Vázquez-De León would be

- 11 - compelled to testify that he did know Forty-Febres. This testimony

would constitute an admission that Vázquez-De León committed

perjury at his change-of-plea hearing. The trial judge recognized

this risk when she said that Vázquez-De León has the "right not to

have to admit that what he said during the plea is not true" and

that she could not "expose this defendant to be[ing] charged with

perjury" by forcing him to testify. Cf. United States v. Zirpolo,

(1st Cir. 1983) ("Given the substantial evidence

presented at the trial which contradicted the statements in [his]

affidavit, it was hardly unreasonable for the district court to

believe it possible that [the witness's] in-court testimony would

tend to incriminate him of perjury.").

Forty-Febres's second argument on this point is that the

district court erred by refusing to delay his trial until after

Vázquez-De León was sentenced. We review a refusal to grant a

continuance for abuse of discretion. See United States v.

Rodriguez-Marrero,

(1st Cir. 2004). In our review,

we do not apply a mechanical test but instead "evaluate each case

on its own facts."

(quoting United States v. Torres,

(1st Cir. 1986)).

Forty-Febres argues that if the district court had

delayed the trial and waited until after Vázquez-De León had been

sentenced, any Fifth Amendment barriers to his testimony would

have disappeared. Not so. Sentencing for the carjackings would

- 12 - not have removed Vázquez-De León's risk of perjuring himself if he

testified at Forty-Febres's trial. We have rejected reasoning

like Forty-Febres's as "overly simplistic" because it "ignores

what the government might bring up during cross examination that

the conviction does not shield from criminal liability." Acevedo-

Hernández,

-70 (citing Castro,

).

C. Alleged Jury Inconsistency

Forty-Febres's final argument is that, because the jury

convicted him of the charges related to carjacking Muriel-Colón

but acquitted him of those related to carjacking Mena-Varella, the

jury's verdict was inconsistent and his conviction should be

vacated. We see no inconsistency. But even if we did, the argument

misses the mark. As the Supreme Court has stated, "[c]onsistency

in the verdict is not necessary." Dunn v. United States,

(1932); see also United States v. Powell,

(1984) (affirming Dunn and "insulat[ing] jury verdicts from

review" on inconsistency grounds); United States v. Alicea,

(1st Cir. 2000). Precedent forecloses Forty-Febres's

inconsistency argument.

IV.

Affirmed.

- 13 -