Petition for certiorari filed at, 07/01/2015
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, U.S. District Judge.
Javier A. Morales-Ramos 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 Francisco A.
Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.
Before Howard, Stahl, and Barron, Circuit Judges.
HOWARD, Circuit Judge.
Defendant-Appellant Kenny Torres-Colón appeals his conviction and sentence for unlawful possession of a firearm. Although two errors occurred at trial, both are ultimately harmless. Thus, we affirm his conviction.
During the early morning hours of March 27, 2012, Sergeant Edgardo Alvarado-Martínez and Agent Alberto Vázquez-Torres were patrolling Highway 52 in Salinas, Puerto Rico. At approximately 1:00 a.m., the officers recorded an oncoming vehicle traveling at a speed of eighty miles per hour, exceeding the fifty-five mile per hour speed limit. Activating their cruiser's siren and lights, the officers followed the vehicle. The vehicle momentarily slowed down as if to stop, but then took off again at a high speed. The officers engaged in a hot pursuit, increasing their own speed to between eighty and ninety miles per hour.
After pursuing the vehicle for approximately two miles, both officers witnessed the individual in the front passenger seat toss something from the passenger-side window. Sergeant Alvarado-Martínez, who had a better vantage point from the cruiser's passenger seat, observed the fleeing vehicle's passenger stick his body half-way out of the window and throw something " solid and black" from the vehicle that " made a solid sound, str[uck] the [highway] barrier, and fell to the ground." Agent Vázquez-Torres, who was driving, also saw something solid fly from the passenger-side window. Moments later, both officers saw the passenger throw a second, " somewhat larger" item onto the roadway. By radio, Sergeant Alvarado-Martínez requested that a nearby third officer, Agent Lorna Padilla-Cartagena, attempt to locate the discarded objects, indicating that one item " might possibly have been a firearm." After about ten miles, the fleeing vehicle was met by a police roadblock and forced to exit the highway. The vehicle stopped in a parking lot a short distance away. The driver, Luis J.
Vázquez-Álvarez (" Vázquez" ), and the passenger, defendant Torres-Colón, were both arrested. Sergeant Alvarado-Martínez reconvened with Agent Padilla-Cartagena on Highway 52, who had recovered a .40 caliber Glock pistol and a fanny pack containing seventy-two rounds of ammunition, three high-capacity 22-round magazines, and two 15-round magazines. There was a hole in the fanny pack, and bullets were scattered around the area.
The defendant, who had a prior felony conviction, was charged with one count of
unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). At trial, defense counsel argued that the defendant did not knowingly possess the firearm because he may have been unaware of its existence until Vázquez placed it in his lap, at which point he quickly threw it out the window. The jury convicted the defendant, and the district court sentenced him to sixty months' imprisonment.
A. The Use of Vázquez's Plea ...