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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. García-Gregory, U.S. District Judge.
David B. Hirsch for appellant.
Max J. Pérez-Bouret, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Susan Z. Jorgensen, Assistant United States Attorney, were on brief, for appellee.
Before Howard, Selya and Kayatta, Circuit Judges.
SELYA, Circuit Judge.
A jury convicted defendant-appellant Jorge Bá ez-Martí nez of possessing a firearm as a convicted felon. Represented by new counsel on appeal, the defendant asserts that the prosecutor both offered an improper interpretation of witness testimony and invited the jury to infer guilt from the defendant's silence. Discerning no plain error, we affirm.
The background facts are largely undisputed, so we merely sketch the pertinent events and proceedings. On the evening of March 29, 2012, the defendant went to El Trapiche, a bar in Guaynabo, Puerto Rico. That same evening, local police were checking the licenses of establishments (like El Trapiche) that were sites of frequent criminal activity.
At roughly 10:00 p.m., a cadre of police officers descended upon El Trapiche. Four official vehicles, including a patrol car carrying uniformed officers and an unmarked car carrying plainclothes officers parked nearby.
After the vehicles parked, the patrol car activated its emergency lights. As officers Ivy González Ortiz (González) and Luis de Serrano Reyes (Serrano) were exiting the unmarked car, they noticed the defendant -- who was sitting at the outdoor bar -- glance in their direction and then discard a fanny pack behind the bar. This act raised the officers' suspicions because in their experience such fanny packs often were used to conceal firearms and drug-related contraband.
The officers approached the defendant, and Serrano jumped over the bar to retrieve the fanny pack. Inside, he found a loaded pistol with an obliterated serial number, additional ammunition, two cigarette lighters, and a card used for passing through toll booths. Serrano asked the defendant whether he had a permit for the firearm. When the defendant did not respond, he was arrested.
In due season, a federal grand jury charged the defendant with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Facing a fifteen-year mandatory minimum sentence, see id. § 924(e)(1), the defendant opted for trial. Inasmuch as the parties stipulated to several elements of the crime, the trial focused on whether the defendant knowingly possessed the firearm.
The government's case in chief consisted of the testimony of the two officers (González and Serrano). In the defense case, the defendant called his mother and sister, who testified that they had dinner with the defendant that evening and saw no fanny pack. Neither of them had known the defendant to wear a fanny pack or to smoke. His mother added that the vehicle the defendant regularly drove was equipped with its own freeway pass. The defendant also called an acquaintance with whom he had rendezvoused at El Trapiche. The acquaintance testified that the
defendant was not wearing a fanny pack when they met.
The jury apparently credited the officers' testimony: it concluded that the government had proven beyond a reasonable doubt that the defendant knowingly possessed the firearm and found him guilty. The district court imposed the mandatory minimum sentence. This timely appeal followed.
In this venue, the defendant asseverates that prosecutorial misconduct entitles him to a new trial. The challenged actions fall into two categories. First, the defendant submits that the prosecutor inappropriately corrected the court interpreter's English translation of certain testimony given by the police officers. Second, he submits that the prosecutor's closing argument made impermissible references to his decision not to testify. Because the defendant interposed no contemporaneous objection to any of the statements that he now denigrates, our review is for plain error. See
United States v. Sánchez-Berríos,424 F.3d 65, 73 (1st Cir. 2005). Under this rubric, the defendant must establish " (1) that an error occurred (2) which was clear or obvious and which not only (3) ...