United States Court of Appeals For the First Circuit

No. 20-1087

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE VÁZQUEZ-ROSARIO,

Defendant, Appellant.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

José B. Vélez Goveo, with whom Vélez & Vélez Law Office was on brief, for appellant. Francisco A. Besosa-Martinez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Appellate Chief, were on brief, for appellee.

August 17, 2022 GELPÍ, Circuit Judge. A jury convicted Defendant-

Appellant José Vázquez-Rosario of one count of false impersonation

of an employee of the United States in violation of

The indictment and corresponding conviction stem from

Vázquez's actions at a traffic stop where he falsely represented

to a police officer that he was an agent of the Federal Bureau of

Investigation ("FBI"). We affirm.

I. Background

A. Facts

We discuss the facts as they were established at trial.

On November 29, 2018, three police officers with the Guaynabo

Municipal Police Department -- Sergeant Yacira Martínez, Officer

Orlando Báez, and Officer Frankyn Nieves -- pulled over a black

Lincoln that committed an illegal lane change and ran a red light

in Guaynabo, Puerto Rico. When the police officers approached the

vehicle, they observed a woman in the driver's seat and a man,

later identified as Vázquez, in the passenger seat. Officer Báez

1 The statute in pertinent part states: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

.

- 2 - informed the driver of the reason for the stop and asked for her

license and registration. The driver produced her license, but

the registration she produced was not for the current year.

Officer Báez informed her that this would be an additional traffic

violation and began to return to the police vehicle to issue the

tickets. At that moment, Vázquez opened his car door, stepped out

of the car, and told the police officers in an agitated manner

that he was a federal agent who investigated corrupt police

officers. He told the police officers conducting the traffic stop

that he was going to take down their information and request an

investigation. Vázquez told them that he had handcuffs for

municipal police officers and asked Sergeant Martínez whether the

last name "Martínez" sounded familiar to her, a reference to former

Police Commissioner Martínez whom Vázquez later claimed he was

investigating. At some point during this exchange, Officer Báez

did indeed issue two tickets to the driver totaling $75 -- one for

the illegal lane change and the other for the incorrect

registration.

Vázquez then told Sergeant Martínez that he wanted to

speak with the police officers' supervisor, the Commissioner of

Police of Guaynabo. Sergeant Martínez called Commissioner Víctor

Franco-Rodríguez to explain the situation to him and request that

he come to the traffic stop. While she was on the phone, Vázquez

approached her and spoke loudly, asserting that he had a federal

- 3 - agent code name as well as a contact agent that she could

presumably contact to verify his claims. Commissioner Franco

arrived at the scene of the traffic stop shortly after to speak

with Sergeant Martínez and Vázquez. He first pulled Sergeant

Martínez aside to learn more about the situation that had

transpired. As Commissioner Franco did so, Vázquez began speaking

loudly to him, stating that he investigated Guaynabo police

officers and Police Commissioner Martínez and that he was FBI. He

mentioned again that he had handcuffs for the police officers on

the scene and said that he was going to investigate them as well.

Commissioner Franco then began to speak with Vázquez

directly. He asked for Vázquez's FBI credentials, to which Vázquez

responded that he didn't have to show him anything. Commissioner

Franco then decided to contact an FBI agent he knew, Guillermo

González, to confirm that Vázquez was an FBI agent.2 Agent González

arrived at the scene and was informed of the unfolding situation

by Commissioner Franco. He described Vázquez as "agitated and

aggressive." When Agent González began speaking with Vázquez, the

latter declined to identify himself as an FBI agent and instead

stated that he worked for the FBI and gave Agent González the names

of two other agents to corroborate this fact. Agent González

2 At the time, Agent González was the supervisor for the Violent Crimes and Crimes Against Children division of the FBI in San Juan, Puerto Rico.

- 4 - decided to contact one of the two agents, Miguel Vega, and confirm

Vázquez's current status with the FBI. Agent Vega confirmed that

Vázquez had worked previously as an FBI source and provided

information to the agency. Agent González later confirmed that,

at the time of the traffic stop, Vázquez was not a paid active

source for the FBI. Additionally, Agent González clarified later

at trial that FBI sources are not FBI employees or agents, and are

made aware of this fact before they start. After that

conversation, Agent González asked the Guaynabo police officers to

place Vázquez under arrest and transport him to the FBI office.3

Following a grand jury indictment, Vázquez pled not

guilty to one count of false impersonation of an employee of the

United States in violation of

. The case proceeded

to trial in August 2019 and, following a three-day trial, a jury

found Vázquez guilty. The district court sentenced Vázquez on

November 13, 2019 to six months of imprisonment. The sentence

imposed is not at issue in this appeal. The timeliness of this

appeal, however, is. We turn to that issue first before addressing

the remainder of Vázquez's claims.

3 Agent González asked the Guaynabo police officers to transport Vázquez to the FBI facilities because he was alone in his vehicle.

- 5 - B. Timeliness of the Appeal

As a threshold matter, we must determine whether the

appeal was timely. The timeline is as follows: Following the

guilty verdict, Vázquez was sentenced on November 13, 2019 and the

district court entered final judgment on November 21, 2019. The

Federal Rules of Appellate Procedure dictate that criminal

defendants have fourteen days to file a notice of appeal after the

entry of judgment, making the deadline for Vázquez to appeal

December 5, 2019. Fed. R. App. P. 4(b)(1)(A)(I). On November 25,

2019, Vázquez filed a motion for reconsideration of the district

court's denial of a sentence of probation. The next day, November

26, 2019, the district court ordered the government to respond to

the motion by December 6, 2019. The government responded by the

deadline. On December 26, 2019, the district court denied the

motion for reconsideration. On December 31, 2019, Vázquez filed

his notice of appeal at the district court.

The government argues that Vázquez's appeal is untimely

because a motion for reconsideration does not automatically extend

the fourteen-day period to file a notice of appeal, and Vázquez

neglected to file a motion requesting an enlargement of the time

to file an appeal. Cf. United States v. González-Rodríguez,

(1st Cir. 2015) ("[S]elf-styled 'motions for

reconsideration of sentence,' unmoored in the rules, do not extend

the time for an appeal.").

- 6 - It is well settled that a district court loses

jurisdiction over a case upon the filing of a notice of appeal,

United States v. Naphaeng,

(1st Cir. 2018),

though we noted in González-Rodríguez "that the filing of such a

notice of appeal does not deprive the district court of

jurisdiction over a post-judgment motion properly before it."

(citing United States v. Ortiz,

, 291 n.1

(1st Cir. 2014)). Under Federal Rule of Appellate Procedure

4(b)(4), a district court may extend the time to file a notice of

appeal "for a period not to exceed 30 days from the expiration of

the time otherwise prescribed by this Rule 4(b)" "[u]pon a finding

of excusable neglect or good cause."4 This thirty-day extension

is in addition to the fourteen-day period allowed by Federal Rule

of Appellate Procedure 4(b)(1)(A)(I).

Here, the district court provided no clear indication

that it had extended the deadline to file a notice of appeal beyond

4 The Rule in pertinent part states, Upon a finding of excusable neglect or good cause, the district court may -- before or after the time has expired, with or without motion and notice -- extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

Fed. R. App. P. 4(b)(4).

- 7 - the fourteen-day period.5 However, this problem is not fatal to

our consideration of Vázquez's appeal. The deadline provided by

Federal Rule of Appellate Procedure 4(b) is not jurisdictional,

see United States v. Reyes-Santiago,

(1st Cir. 2015); United States v. Lantis,

, 38 n.3 (10th

Cir. 2021), and, in any event, because we find that Vázquez's

appeal fails on the merits, we may assume timeliness arguendo and

indeed do so here. See United States v. Texeira-Nieves,

, 52–53 (1st Cir. 2022); Tacuri-Tacuri v. Garland,

(1st Cir. 2021); United States v. Norman,

,

107 n.5 (3d Cir. 2012) (unpublished). We therefore proceed

seriatim to the merits of Vázquez's appeal.

II. Discussion

A. Sufficiency of the Evidence

The bulk of Vázquez's arguments on appeal boil down to

the insufficiency of the evidence offered for the jury to convict

him. To resolve the same, we must first establish the correct

standard of review, on which the parties disagree. Vázquez states

in his brief that we typically review a sufficiency claim de novo,

and determine whether any rational jury could have found the

defendant guilty beyond a reasonable doubt, United States v.

5 In the future, we highly encourage district courts to provide a clear indication that, upon a finding of good cause or excusable neglect, the time to file an appeal is extended for thirty additional days as explicitly allowed under Rule 4(b)(4).

- 8 - Cortes-Caban,

(1st Cir. 2012), but also concedes

that where the defendant has failed to object below, the appellate

court reviews only for plain error. United States v. Theodore,

(1st Cir. 2003). The government, however, advances

that when a motion for judgment of acquittal under Federal Rule of

Criminal Procedure 29 is not preserved for appeal because it was

not made below, the defendant has "forfeit[ed] the benefit of the

customary standard of review, thereby negating any claim of

evidentiary insufficiency unless affirming the conviction would

work a 'clear and gross injustice.'" United States v. Castro-Lara,

, 980 n.2 (1st Cir. 1992) (quoting United States v.

Cheung,

, 730 n.1 (1st Cir. 1988)).6

Our precedent unequivocally dictates the outcome that

the government urges. It is clear that Vázquez did not make any

Rule 29 motion below, waived his Rule 29 arguments at the close of

the government's case, and did not renew said arguments at the

close of all the evidence. Therefore, we review the sufficiency

of the evidence claim only for a clear and gross injustice.

Vázquez argues there was insufficient evidence presented

that he obtained a "thing of value" as a result of his

impersonation of an FBI agent, which he argues is required by

6 At oral argument, Vázquez conceded that "clear and gross injustice" is the correct standard of review in this case, but did not advance said argument in his brief.

- 9 - § 912. This argument is easily resolved. The text of

"creates and describes two separate and distinct offenses."

Ekberg v. United States,

(1st Cir. 1948); United

States v. Lepowitch,

(1943). The first, under

the "acts as such" language of the statute, is "false impersonation

of a federal official coupled with an overt act in conformity with

the pretense." United States v. Rippee,

(7th

Cir. 1992); see also United States v. Barnow,

(1915). The second is "false impersonation of a federal official

coupled with demanding or obtaining a thing of value." Rippee,

; see also Barnow,

. Vázquez was

indicted, charged, and convicted under the "acts as such" modality

of the statute rather than the "thing of value" modality.

Therefore, Vázquez's arguments on appeal centering on the "thing

of value" modality of the statute rather than the "acts as such"

modality -- specifically that the government did not prove that he

obtained a thing of value because the ticket was issued to the

driver rather than to him -- necessarily fail. Because Vázquez

was indicted and convicted under the "acts as such" portion of the

statute, the government did not need to prove that he also obtained

a "thing of value" by his impersonation. See Lepowitch,

("[A] person may be defrauded although he parts with

something of no measurable value at all.").

- 10 - Vázquez also posits that his conviction should be

reversed on appeal because there was insufficient evidence

presented at trial for a jury to convict him of a violation of

. Specifically, he argues the "intent to defraud"

remains an inherent part of a § 912 violation which the government

must prove, despite the removal of that language by Congress in

1948, a position which is supported by some of our sister circuits.

See United States v. Gayle,

(11th Cir. 1992)

(presenting circuit split on "intent to defraud" element). Though

Vázquez recognizes that we "have not yet formally ruled on the

issue of whether the government in a § 912 must plead and prove

'intent to defraud,'" he alleges that we have "impliedly joined"

those circuits which have held that "intent to defraud" remains an

essential element of a § 912 charge, though he offers no support

for this proposition. Vázquez argues that there was insufficient

evidence presented at trial proving that he had the intent to

defraud while he was impersonating an FBI agent.

Vázquez's brief has an important deficiency which bears

on our resolution of his sufficiency of the evidence claim. In

his brief, Vázquez does not attempt to address the clear and gross

injustice standard of review and instead only addresses the plain

error standard which, as we addressed supra, is inapplicable here.

"The problem for [Vázquez] is that his brief does not mention the

clear and gross injustice standard, let alone develop any argument

- 11 - to meet it. . . . [B]ecause we are not obliged to do a party's

work for him, we consider this aspect of his sufficiency claim

waived for inadequate briefing." United States v. Charriez-Rolón,

(1st Cir. 2019) (citing United States v. Freitas,

(1st Cir. 2018)).

Even absent this waiver, Vázquez's plain error argument

regarding the intent to defraud element does not persuade us. As

Vázquez acknowledges in his brief, "[t]he First Circuit has not

yet formally ruled on the issue of whether the government in a

§ 912 case must plead and prove 'intent to defraud.'" Some of our

sister circuits have held that the intent to defraud element of a

§ 912 offense remains, despite Congress's removal of that

language, while other circuits have held the opposite. Compare

United States v. Guthrie,

(4th Cir. 1967)

(holding that "'intent to defraud' is no longer an element of a

charge under . . . § 912"), with United States v. Randolph,

(5th Cir. 1972) (holding that "'fraudulent

intent' . . . is an essential element in a prosecution

under . . . § 912"). As we have previously established, "if a

question of law is unsettled in this circuit, and a conflict exists

among other circuits, any error in resolving the question will not

be 'plain or obvious.'" United States v. Crocco,

(1st Cir. 2021) (quoting United States v. Diaz,

(1st Cir. 2002)). Despite Vázquez's argument to the contrary, "no

- 12 - plain error occurs when the state of the law is murky." United

States v. Sweeney,

(1st Cir. 2000).

Therefore, finding that affirming the conviction would

not work a "clear and gross injustice," we so affirm. Castro-Lara,

n.2.

B. Touhy Claim

Vázquez's next argument on appeal concerns his request

for the testimony of federal officers to corroborate his claims

that he was working as an FBI agent at the time of his arrest.

Two days before Vázquez's trial was set to begin, he sent an e-

mail to the criminal division at the Department of Justice pursuant

to United States ex rel. Touhy v. Ragen,

(1951)

(upholding regulations which provide for agencies' disclosure of

information).7 The letter requested the presence of three

7 When Vázquez made his written Touhy request, he cursorily argued that "Touhy regulations do not apply to criminal cases." Though he mentions that argument in his briefing to this court with a quotation from United States v. Reynolds,

(1953), he goes no further to develop said argument. Therefore, we need not address it here. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). Vázquez also mischaracterizes the basis of the district court's grant of the motion to quash his Touhy request. In his brief, he argues that the court "deprived [him] of his constitutional rights" when it "unreasonably allowed the prosecution to invoke its governmental privileges to deprive [him] of that which was material to his defense," namely, the testimony of the three government witnesses. On the contrary, in granting the government's motion to quash, the district court did not wade

- 13 - government witnesses to testify about Vázquez's work with the FBI:

two Assistant U.S. Attorneys and one FBI agent, all stationed in

Puerto Rico. The government promptly responded with a motion to

quash the request for testimony, arguing that the letter failed to

conform with the Department of Justice's Touhy standards and was

overly broad. The government further argued that even if the

letter met the Touhy requirements, it nonetheless failed to provide

indicia of admissibility, such as the relevance of the testimony,

and risked confusing the issues and misleading the jury as

contemplated by Federal Rule of Evidence 403. At the first day of

trial, the district court granted the government's motion to quash,

barring the three individuals from being subpoenaed to testify.8

In its reasoning, stated orally prior to the start of trial, the

into the murky waters of privilege, but instead agreed with the government that Vásquez's Touhy request was not relevant. 8 We note the proximity of the Touhy request to the start of trial, that is only two days prior. A review of the docket below reflects that trial was set seventy-four days in advance. Moreover, the district court pushed the start of trial back one week following the defendant's request to do so. As such, we caution prospectively that last-minute Touhy requests without any reasonable explanation of their timing may likely not be seen with favorable eyes. On the other hand, Touhy requests made with advanced time allow both the government and the district court to respond and rule accordingly. Cf. United States v. Nivica,

(1st Cir. 1989) ("Given the case-specific nature of criminal trials, the district court must be afforded great latitude in weighing factors such as timeliness, materiality, relevancy, competency, practicality, and utility, as a means of determining whether a subpoena request is well founded.").

- 14 - district court agreed with the government that the testimony of

the subpoenaed witnesses was not relevant to the issues at trial.

On appeal, Vázquez argues that the district court

committed reversible error by granting the motion to quash.

Specifically, Vázquez argues that his Touhy request was sufficient

under the requirements of

(c), which only requires

a "summary of the testimony sought" be provided to the Department

of Justice.9 Vázquez also argues that granting the motion to quash

deprived him of testimony that was material to his defense.

Recognizing the district court's broad discretion to

resolve discovery disputes, we review the district court's

decision on pretrial discovery matters, such as a motion to quash

a subpoena, for abuse of discretion. Cabral v. U.S. Dep't of

Just.,

(1st Cir. 2009); Heidelberg Ams., Inc. v.

Tokyo Kikai Seisakusho, Ltd.,

(1st Cir. 2003).

Therefore, we will reverse the district court's order on appeal

9 This regulation, which governs the disclosure of information in cases in which the United States is a party, states: If oral testimony is sought by a demand in a case in which the United States is a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by the party's attorney setting forth a summary of the testimony sought must be furnished to the Department attorney handling the case or matter.

(c).

- 15 - "only 'upon a clear showing of manifest injustice, that is, where

the lower court's discovery order was plainly wrong and resulted

in substantial prejudice to the aggrieved party.'" Heidelberg,

(quoting Mack v. Great Atl. & Pac. Tea Co.,

(1st Cir. 1989)).

We find no abuse of discretion as to the district court's

decision that Vázquez' proffered witnesses would not be relevant.

The proposed testimony of the three government witnesses would

have established that Vázquez was a paid informant for the FBI

from 2011 until 2017, which is not probative of whether he was an

FBI agent in November of 2018 when the traffic stop occurred. As

the district court pointed out in its decision, "Anyone can call

the FBI at any time. . . . That does not make those folks

informants, much less, paid sources, and even more so, special

agents." Given our deference to the district court in discovery

matters, we find no abuse of discretion and decline to disturb its

decision as to this issue.

III. Conclusion

The decision of the district court is

AFFIRMED.

- 16 -