APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Steven A. Feldman, with whom Feldman and Feldman was on brief, for appellant José Vizcarrondo-Casanova.
Paul Camarena, with whom North & Sedgwick Law was on brief, for appellant Carlos Aponte-Sobrado.
Elaine Mittleman for appellant Erik Díaz-Colón.
José A. Contrera, Assistant United States Attorney, with whom John A. Mathews II, Assistant United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa Emilia Rodriguez-Vélez, United States Attorney, were on brief, for appellee.
Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Criminal defendants José Vizcarrondo-Casanova, Carlos Aponte-Sobrado, and Erik Díaz-Colón appeal from convictions related to the carjacking, robbery, and homicide of Elis Manuel Andrades-Tellería, a drug dealer and rival to Díaz-Colón. Vizcarrondo-Casanova argues that admission of evidence of his prior bad acts was impermissible under Federal Rules of Evidence 404(b) and 403. Aponte-Sobrado argues that the prosecutor improperly vouched for the truthfulness of the government's witnesses in his closing argument, and that the government lacked the authority to prosecute him. Díaz-Colón argues that three counts of his indictment were constructively amended, that the government improperly withdrew a plea offer made to him before trial, and that the jury rendered inconsistent verdicts on two counts. Though the district court's treatment of the Rule 403 issue, the government's closing argument, and the government's understanding of how certain statutes should be charged in an indictment were all less than ideal, we affirm all three defendants' convictions.
The defendants in this appeal were among twelve people charged in a single indictment in connection with the kidnapping, robbery, and death of Andrades-Tellería. The defendants, some of whom were Puerto Rico police officers, were accused of conspiring to pose as law enforcement officers carrying out their legitimate duties in order to carjack, abduct, and rob Andrades-Tellería. In May 2008, the defendants, some of whom were in a Puerto Rico Police Department vehicle, allegedly stopped Andrades-Tellería in his car, handcuffed him, read him his Miranda rights, and took approximately fourteen kilograms of cocaine from him. According to cooperating government witnesses, they then took him and the car to an auto-body repair shop which was owned by another conspirator and closed for the day for this purpose. Some conspirators then went to Andrades-Tellería's house where they stole money, watches, and a handgun. Meanwhile, Andrades-Tellería was killed, and his body was dumped early the next morning on a "secluded rural road." Díaz-Colón, who was described at trial as the ringleader of the scheme, did not personally participate in the carjacking, abduction, or homicide.
All three defendants in this appeal were indicted for conspiracy to commit carjacking. 18 U.S.C. §§ 371, 2119. All three defendants were also charged with conspiracy to "injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution, " in violation of 18 U.S.C. § 241, and with depriving Andrades-Tellería of his rights under color of law in violation of 18 U.S.C. § 242. Of the defendants in this appeal, only Aponte-Sobrado and Vizcarrondo-Casanova were also charged with carjacking itself.
At trial, the defendants were convicted on all counts described above. Vizcarrondo-Casanova was acquitted on an additional weapons count, and Aponte-Sobrado was acquitted on two weapons counts. The jury also found that Andrades-Tellería's death was "proximately, naturally, and foreseeably caused by" Vizcarrondo-Casanova and Aponte-Sobrado's violation of sections 241 and 242. However, with respect to Díaz-Colón, the jury found that Andrades-Tellería's death was caused by Díaz-Colón's violation of section 241, but not his violation of section 242. Each defendant was sentenced to life in prison. These appeals followed.
A. Vizcarrondo-Casanova's Rule 404(b) and 403 Arguments
The district court admitted a substantial amount of evidence concerning prior criminal conduct some of the defendants had committed together. The evidence, in summary, included the following: testimony by codefendant Osvaldo Hernández-Adorno that he and Vizcarrondo-Casanova planned a robbery together in which Vizcarrondo-Casanova and another person intended to impersonate FBI agents; testimony by codefendant Ricardo Herrera-Manino that he and Vizcarrondo-Casanova pretended to be police officers to intimidate someone who was stealing from Herrera-Manino's friend, tasered that person, and committed "many robberies" of other criminals; testimony by codefendant Romulo Bello-Negrón that he, Vizcarrondo-Casanova, and others, including other codefendants, attempted to rob an illegal gambling business while pretending to be police officers and, on another occasion, pretended to be police officers when robbing the driver of a car containing "[f]orty-odd" kilos of cocaine; and testimony by codefendant Noel Rosario-Colón, a Puerto Rico Police Department officer, that he and Vizcarrondo-Casanova committed "more than five" robberies in which they pretended to be police or FBI agents and took drugs or money.
Vizcarrondo-Casanova argues on appeal, first, that Federal Rule of Evidence 404(b) precluded the admission of evidence of crimes that he had previously committed. He contends, second, that even if Rule 404(b) did not bar admission of the evidence, Federal Rule of Evidence 403 rendered the evidence inadmissible. Vizcarrondo-Casanova properly objected to this evidence before trial and also when some, but not all, of the evidence was introduced at trial. For the sake of argument we presume that his objection was preserved. Cf. United States v. Whitney, 524 F.3d 134, 140 (1st Cir. 2008) (noting that where a district court's ruling on an evidentiary issue in a motion in limine is not "final" an objection at trial is needed to preserve the issue for appeal but also that the argument failed even if preserved). We therefore address each of these claims of evidentiary error for abuse of discretion. See, e.g., United States v. Mare, 668 F.3d 35, 38 (1st Cir. 2012).
Under Federal Rule of Evidence 404(b), "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character, " but "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Rule 404(b)'s list of purposes for which evidence of prior bad acts is admissible is not exclusive. We have previously held that evidence of prior crimes may also be admitted under 404(b) in a conspiracy case "to help the jury understand the basis for the co-conspirators' relationship of mutual trust." United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir. 1999). It was on this basis that the district court admitted the evidence challenged by Vizcarrondo-Casanova. That determination was not an abuse of discretion because, for the reasons we discuss below regarding the Rule 403 determination, in this particular case evidence that the defendants had a substantial basis to trust each other with their freedom and lives was certainly relevant to the plausibility of the coordinated conduct of which the prosecution accused them.
The Rule 403 question is closer because it asks not just whether the evidence was relevant for a proper purpose, but also whether its probative value was "substantially outweighed by a danger of . . . unfair prejudice." Fed.R.Evid. 403; see also United States v. Watson, 695 F.3d 159, 165 (1st Cir. 2012). Nevertheless, the "balancing act" called for by Rule 403 "'is a quintessentially fact-sensitive enterprise, and the trial judge is in the best position to make such factbound assessments.'" Watson, 695 F.3d at 165 (quoting Udemba v. Nicoli, 237 F.3d 8, 15-16 (1st Cir. 2001)). Therefore "'[o]nly rarely and in extraordinarily compelling circumstances will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.'" Id. at 165-66 (alteration in original).
The quantity of evidence admitted here strikes us as cumulative. It also borders on overshooting the reach of the reasons given for its probative force, in that it includes more details of the prior crimes than were necessary to establish that the defendants had reason to trust one another. The district court's judgment to the contrary, however, is not so far beyond the pale as to constitute the type of "exceptional circumstance" that calls for reversal based on such an evidentiary ruling. United States v. Houle, 237 F.3d 71, 77 (1st Cir. 2001). That is so because this is an unusual case in which the crime as charged required planning, coordination, and implementation by several corrupt law enforcement officers with several violent criminals. Opportunities for betrayal were rife, and ran in multiple directions. Were the cops really dirty? Were the crooks playing only for the home team? A powerful argument can be made that any particular defendant would not have knowingly participated in such a risky undertaking unless he had good reason to trust the reliability and competence of the others. In short, this is a case in which the existence and origins of trust among the conspirators is especially relevant.
Our decision in United States v. Varoudakis, 233 F.3d 113 (1st Cir. 2000), in which we held that the district court abused its discretion under Rule 403 by admitting evidence we held to be relevant under Rule 404(b), is not to the contrary. In Varoudakis, evidence of a prior crime served only to make more plausible a witness's claim that the defendant revealed to her a later crime. Id. at 120-21. In short, it bolstered credibility. Here, the probative thrust of the evidence of the prior crimes made more plausible the very notion that so many oppositionally employed people would and could coordinate their efforts to attempt the particular crime. Additionally, the record reveals in this case no obvious alternative to establish the existence of trust. In Varoudakis, by contrast, the government did not need evidence of the prior crime to demonstrate the existence of a relationship of trust because it had ample other means to demonstrate the same thing, including the fact that the witness and the defendant had been in a romantic relationship for a decade and cohabited for six of those years. Id. at 122-25. Reaffirming without reservation our decision in Varoudakis, we ...