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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-2151 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                 RALPH ROSARIO-DIAZ, A/K/A JUNI, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-2152 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                      WILSON MONTALVO ORTIZ, <br>                       A/K/A WILLIE BARBER, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-2153 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br>                                  <br>                                v. <br> <br>                    JUAN ANTONIO BAEZ-JURADO, <br>                           A/K/A PAPO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-2328 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                     WILFREDO LOPEZ-MORALES, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 99-1015 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                       ADA MELENDEZ-GARCIA, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Daniel R. Domnguez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>           Campbell and Wallace, Senior Circuit Judges. <br> <br>                      _____________________ <br> <br>    Rachel Brill and Bruce J. McGiverin, by appointment of the <br>Court, were on consolidated brief, for appellants Ralph Rosario- <br>Daz and Wilson Montalvo-Ortiz. <br>    Lydia Lizarribar-Masini and Ramn Garca, by appointment of <br>the Court, were on consolidated brief, for appellants Juan Antonio  <br>Bez-Jurado and Ada Melndez-Garca. <br>    Vilma Mara Dapena, by appointment of the Court, with whom <br>Dapena & Dapena Law Offices was on brief, for appellant Wilfredo <br>Lpez-Morales. <br>    Sonia I. Torres, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, <br>Chief, Criminal Division, and Camille Vlez-Riv, Assistant United <br>States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                         January 31, 2000 <br>                       ____________________

         TORRUELLA, Chief Judge.  Ralph Rosario-Daz, Wilson <br>Montalvo-Ortiz, Ada Melndez-Garca, Juan Bez-Jurado, and  <br>Wilfredo Lpez-Morales were each convicted on both counts of a <br>grand jury indictment charging them with (1) aiding and abetting <br>each other in a carjacking that resulted in the death of the <br>victim, in violation of 18 U.S.C.  2 & 2119(3); and (2) <br>conspiring to commit that carjacking, in violation of 18 U.S.C. <br> 371.  The district court sentenced each defendant to life in <br>prison on each count, the sentences to run concurrently.  All five <br>defendants now appeal. <br>  Because we hold that appellants Rosario-Daz and <br>Montalvo-Ortiz did not have the requisite foreknowledge that a <br>carjacking crime was to be committed, their convictions must be set <br>aside.  We affirm the convictions of appellants Melndez-Garca, <br>Bez-Jurado, and Lpez-Morales, although we remand for resentencing <br>on their conspiracy convictions. <br>                          I.  BACKGROUND <br>  A.  The Conspiracy and the Carjacking <br>  On June 9, 1995, defendants Ralph Rosario-Daz and Wilson <br>Montalvo-Ortiz placed a telephone call to Gregorio Aponte-Laz, who <br>would later be a codefendant in this case and ultimately the <br>government's star cooperating witness.  Rosario-Daz informed <br>Aponte-Laz that Aponte-Laz's brother-in-law, Fonsi, a runner in <br>Rosario-Daz's drug ring, had been killed the preceding day.  <br>Rosario-Daz told Aponte-Laz that among Fonsi's belongings had <br>been found a list of persons who they believed to have Fonsi's drug <br>money.  The list included the name of Edna Rivera-Hernndez. <br>  Rosario-Daz told Aponte-Laz that he had a job for him-- <br>to find Edna and retrieve the $200,000 she was thought to have.  In <br>exchange, Aponte-Laz would receive $25,000.  If Edna should refuse <br>to return the money, Aponte-Laz was to kill her and make it look <br>like a robbery.  To facilitate the crime, Rosario-Daz provided <br>Aponte-Laz with several pieces of information, including Edna's <br>address, the color and make of her car, as well as some of the <br>numbers of the car's license plate.  He also told Aponte-Laz that <br>Edna studied at the American City College (ACC), where Rosario-Daz <br>and Montalvo-Ortiz worked. <br>  On Tuesday, June 13, 1995, Rosario-Daz pointed Edna out <br>to Aponte-Laz at the ACC.  At that point, Rosario-Daz, Montalvo- <br>Ortiz, and Aponte-Laz discussed the planned participation of <br>defendant Juan Bez-Jurado.  Rosario-Daz explained that Aponte- <br>Laz was to meet Bez-Jurado the following Friday, June 16, 1995.  <br>Montalvo-Ortiz instructed Aponte-Laz not to rape Edna, but stated <br>that he should kill her if necessary. <br>  On Friday, June 16, 1995, as planned, Aponte-Laz met <br>Bez-Jurado in a local plaza.  With Aponte-Laz was defendant Ada <br>Melndez-Garca, who also knew Bez-Jurado.  The three agreed that <br>they would carry out their contract on Tuesday, June 20, 1995.  <br>Bez-Jurado agreed to bring a firearm. <br>  On the appointed day, Aponte-Laz met in the plaza with <br>Melndez-Garca, who had her son with her due to a field day at the <br>elementary school.  Aponte-Laz then went to the ACC, where <br>Rosario-Daz informed him that Edna would be at a doctor's <br>appointment that day, rather than at the college.  Aponte-Laz <br>expressed his feeling that the crime would therefore be easier, <br>because they would not have to go to Edna's house.  Montalvo-Ortiz, <br>however, warned Aponte-Laz to be careful because a law enforcement <br>drug division was located near the doctor's office. <br>  Aponte-Laz and Melndez-Garca returned to the town <br>plaza, where Bez-Jurado was waiting with defendant Wilfredo Lpez- <br>Morales, whom Melndez-Garca said she knew.  Bez-Jurado informed <br>them that he had not brought a weapon as they had planned.  The <br>five of them, Aponte-Laz, Melndez-Garca, her son Victor, Bez- <br>Jurado, and Lpez-Morales, then walked the streets near the plaza.  <br>They saw Edna, who got out of her car and entered a pediatrician's <br>office with her four-month-old baby.  Aponte-Laz and the others <br>went to a nearby supermarket and purchased a knife. <br>  Eventually, Edna exited the doctor's office and moved <br>towards her car, pushing her baby in a stroller.  Aponte-Laz, <br>Melndez-Garca, and Vctor approached the car at the same time as <br>Edna, complimenting and inquiring about her baby.  When Edna had <br>placed her car key in the car door, Aponte-Laz put the knife to <br>her ribs.  Bez-Jurado and Lpez-Morales appeared, and Edna was <br>forced into the back seat with them and Vctor. <br>  Aponte-Laz drove the car away from the plaza.  From <br>Edna's purse, appellants removed twenty-six dollars in cash and a <br>bank card, the access code for which Edna divulged before she was <br>killed.  Aponte-Laz asked Edna for the $200,000, but she responded <br>that she did not have it and that she had returned it to Fonsi <br>before he was killed.  At Aponte-Laz's instruction, Melndez- <br>Garca then slapped Edna. <br>  After leaving the plaza area, Aponte-Laz stopped to <br>purchase crack, marijuana, and heroin.  Aponte-Laz, Bez-Jurado, <br>and Lpez-Morales consumed the drugs in the car as they drove.  <br>Meanwhile, they continued to slap Edna and threatened to kill her <br>baby. <br>  Near the Guayanez River, the car became stuck in a sugar <br>cane bank, and Aponte-Laz, Bez-Jurado, Lpez-Morales, and Edna <br>exited the car.  While Melndez-Garca sat in the car with Edna's <br>baby, the rest of the group went to a secluded area surrounded by <br>bamboo trees, and Edna was ordered to sit on a towel.  While Edna <br>protested that she had returned all the money, she was asked <br>intimate questions by Aponte-Laz while Bez-Jurado wielded the <br>knife.  Aponte-Laz, Bez-Jurado, and Lpez-Morales then each raped <br>Edna and even placed young Vctor on top of her naked body in a <br>grotesque simulation of their acts. <br>  After the rapes, Edna was ordered to put her clothes back <br>on.  While threatening to kill her baby, Aponte-Laz, Bez-Jurado, <br>and Lpez-Morales beat Edna with their fists and with a bamboo <br>stick.  Aponte-Laz then ordered Lpez-Morales to drag Edna to the <br>river, presumably to drown her.  When Edna resisted, Aponte-Laz <br>told Bez-Jurado to help.  Bez-Jurado entered the river and slit <br>Edna's throat.  They left her body in the river, where it was found <br>decapitated on July 7, 1995. <br>  After killing Edna, Aponte-Laz and appellants managed to <br>extract the car from the sugar cane bank and fled the area.  <br>Aponte-Laz telephoned Rosario-Daz and informed him that Edna was <br>dead but that they still had her car and her baby.  Rosario-Daz <br>instructed them to leave the car and baby at a safe place. <br>  Aponte-Laz and Melndez-Garca attempted unsuccessfully <br>to use Edna's bank card at a retail store.  Aponte-Laz and <br>appellants then drove to the city of Gurabo, where Aponte-Laz was <br>able to withdraw seventy dollars from Edna's account. <br>  Aponte-Laz and the appellants next drove to Caguas <br>Central, where Edna's baby began to cry.  When Melndez-Garca <br>tried to feed the baby some juice, it choked.  Aponte-Laz and <br>appellants drove to the Caguas Municipal Hospital, where the baby <br>was examined and released.  When Aponte-Laz and Melndez-Garca <br>exited the hospital, however, Bez-Jurado had left the group.  The <br>remaining four proceeded to Melndez-Garca's house, where <br>Melndez-Garca bathed and fed the baby. <br>  Later that evening, Aponte-Laz and Lpez-Morales drove <br>the baby to Luquillo.  On the way, they had a minor accident, but <br>they finally arrived in Luquillo, where the baby was abandoned in <br>front of a residence. <br>  That same evening, Edna's husband and his brother began <br>to search for Edna.  On the highway, they spotted her car, driven <br>by Aponte-Laz, and gave chase.  Edna's husband was able to turn <br>off the ignition of Edna's car using a spare remote control for the <br>car's alarm system.  When Edna's car stopped, Aponte-Laz ran away <br>but was apprehended by the husband and his brother.  Edna's ring <br>and bracelet were found on Aponte-Laz's person.  When the police <br>arrived, the knife and a photo of Aponte-Laz were found in Edna's <br>car. <br>  B.  The Investigation and Trial <br>  On June 15, 1995, after being apprehended by Edna's <br>husband, Aponte-Laz gave the first of several inconsistent <br>statements to law enforcement.  Among those statements was the <br>assertion that Lpez-Morales had had nothing to do with the crime, <br>which the government claimed at trial was made in an attempt to <br>gain the release of Lpez-Morales so that Lpez-Morales could <br>murder the government's witnesses.  Subsequent to his guilty plea <br>in July of 1995, Aponte-Laz began to divulge the details of the <br>crime to investigators. <br>  On June 25, 1995, FBI agents conducted a consent search <br>of Melndez-Garca's residence and found various items tied to the <br>abduction of Edna.  After waiving her rights, Melndez-Garca made <br>a statement admitting some knowledge of the crime but in general <br>denying direct involvement.  The following day Melndez-Garca gave <br>a second statement detailing the crime and admitting her <br>involvement.  She attempted to lead the police to the body but <br>could not find the scene. <br>  On June 28, 1995, the FBI interviewed Bez-Jurado, who <br>claimed that Melndez-Garca had told him what had happened to Edna <br>and where her body had been left.  Bez-Jurado also attempted to <br>lead the police to the crime scene but could not locate it. <br>  On June 28, 1995, Lpez-Morales was also interviewed.  He <br>denied knowing Melndez-Garca or anything about Edna or her <br>disappearance. <br>  On May 6, 1996, a grand jury returned a two-count <br>indictment charging Aponte-Laz, Melndez-Garca, Bez-Jurado, <br>Lpez-Morales, Rosario-Daz, and Montalvo-Ortiz with (1) aiding and <br>abetting each other in the commission of a carjacking in violation <br>of 18 U.S.C.  2 & 2119(3), and (2) conspiracy to commit that <br>carjacking, in violation of 18 U.S.C.  371.  All defendants <br>initially pled not guilty, although Aponte-Laz subsequently <br>changed his plea and agreed to cooperate with the United States. <br>  Before trial, appellants Melndez-Garca, Montalvo-Ortiz, <br>Bez-Jurado, and Rosario-Daz filed motions to suppress evidence.  <br>Hearings were held on two of the motions, and all of the motions <br>were denied. <br>  At trial, the prosecution's star witness was Aponte-Laz, <br>who testified extensively about the details of the crime and the <br>participation of each defendant.  Immediately after the testimony <br>of Aponte-Laz, the United States put FBI agent Daryl Huff on the <br>witness stand.  Over the objection of defense counsel, Agent Huff <br>testified at length about his interactions with Aponte-Laz during <br>the investigation of the carjacking and murder of Edna.  Agent Huff <br>testified as to the interrogation techniques used with Aponte-Laz, <br>as to the statements made by Aponte-Laz, and even as to how law <br>enforcement evaluated the veracity and reliability of Aponte-Laz's <br>statements.  For example, Agent Huff identified omissions and <br>falsities in Aponte-Laz's statements: <br>           A:     Specifically with regards to why he <br>         traveled to Caguas, one of the lies.  <br>         And also specifically about the rape.  <br>         He had not mentioned that.  And he also <br>         omitted the fact that Wilson Montalvo <br>         Ortiz and Ralph Rosario Daz were <br>         involved in the carjacking or <br>         conspiracy of the carjacking fully.  <br>         So, those were three of the lies. <br>           Q:     Okay.  Now, how were those omissions <br>         discovered? <br>           A:     Again through interview and through <br>         seeing the discrepancies, <br>         inconsistencies and just things that <br>         didn't make sense in the statement.  It <br>         became pretty obvious in most cases. <br> <br>                          . . . . <br> <br>           Q:     And did you use or need a <br>         polygraph in order to do <br>         that? <br>           A:     No, a polygraph is a last resort <br>         technique.  There was no need for a <br>         polygraph in the particular situation.  <br>         We were pinning him down without a <br>         polygraph.  We could tell when he was <br>         lying. <br> <br>Tr. of Nov. 25, 1995, at 22.  Other trial testimony included expert <br>testimony on the mental capacity of Melndez-Garca. <br>  On December 12, 1997, after twenty-three days of trial, <br>a jury found each defendant guilty on both counts of the <br>indictment.  Rosario-Daz and Montalvo-Ortiz filed a motion for a <br>new trial, which all appellants joined; a hearing was held, and the <br>district court denied the motion. <br>  On August 27, 1998, appellants Rosario-Daz and Montalvo- <br>Ortiz were given life sentences on each count, to be served <br>concurrently.  Bez-Jurado was given the same sentence the <br>following day, and Lpez-Morales and Melndez-Garca received the <br>same sentences on October 30, 1998 and November 13, 1998, <br>respectively.  All appellants filed timely notices of appeal. <br>                     II.  LAW AND APPLICATION <br>  Appellants now challenge their convictions and sentences <br>on a number of grounds.  We begin with the joint arguments of <br>appellants Rosario-Daz and Montalvo-Ortiz. <br>  A.  Rosario-Daz and Montalvo-Ortiz <br>  Although appellants Rosario-Daz and Montalvo-Ortiz raise <br>several issues on appeal, we find it necessary to reach only one-- <br>whether the evidence presented to the jury was sufficient to <br>support guilty verdicts on Counts One and Two.  We review a <br>district court's Rule 29 determinations de novo.  See United States <br>v. Hernndez, 146 F.3d 30, 32 (1st Cir. 1998).  Because we find <br>that there was not sufficient evidence that Rosario-Daz and <br>Montalvo-Ortiz had the knowledge required to support a conviction <br>for aiding and abetting a carjacking, we reverse their convictions <br>on Count One.  Similarly, we reverse their convictions on Count Two <br>because the government failed to introduce evidence sufficient to <br>establish that Rosario-Daz and Montalvo-Ortiz conspired to <br>carjack. <br>  1.  Count One <br>  Rosario-Daz and Montalvo-Ortiz claim that the evidence <br>submitted at trial failed to prove that they had "foreknowledge" <br>that Aponte-Laz would carjack Edna's vehicle.  They argue that <br>their aiding and abetting convictions must therefore be reversed.  <br>After carefully reviewing the record and the relevant law, we <br>agree. <br>  To support a conviction for aiding and abetting, the <br>government must prove, in addition to the commission of the offense <br>by the principal, that the defendant "'consciously shared the <br>principal's knowledge of the underlying criminal act, and intended <br>to help the principal.'"   United States v. Spinney, 65 F.3d 231, <br>235 (1st Cir. 1995) (quoting United States v. Taylor, 54 F.3d 967, <br>975 (1st Cir. 1995)).  We have stated that the defendant's <br>knowledge must be more than merely a "'general suspicion that an <br>unlawful act may occur.'"  United States v. Loder, 23 F.3d 586, 591 <br>(1st Cir. 1994) (quoting United States v. Labat, 905 F.2d 18, 23 <br>(2d Cir. 1990)).  However, we have also recognized the difficulty <br>of precisely articulating the degree of knowledge required to <br>support a conviction for aiding and abetting particular offenses.  <br>See, e.g., Spinney, 65 F.3d at 236-40 (discussing the "continuum" <br>of mens rea requirements for aiding and abetting). <br>  In Spinney, for example, we held that a conviction for <br>aiding and abetting an armed bank robbery must be supported by <br>evidence that the defendant was "on notice of the likelihood" that <br>the principal would use a dangerous weapon in the commission of the <br>bank robbery.  See id. at 240.  By contrast, we held that a <br>conviction under 18 U.S.C.  2 & 924(c) for aiding and abetting <br>the use of a firearm in a crime of violence required proof that the <br>defendant knew "to a practical certainty" that the principal would <br>be using a gun.  See id. at 238-39.  Although we were not explicit, <br>a fair reading of Spinney supports the proposition that the level <br>of knowledge required to support an aiding and abetting conviction <br>is related to the specificity of the principal offense, as to both <br>mens rea and actus reus. <br>  Not surprisingly, appellants urge us to adopt the higher <br>"practical certainty" standard referred to in Spinney.  However, we <br>need not decide that issue today.  Even under a less exacting <br>"notice of likelihood" standard, we conclude that no reasonable <br>jury could have found appellants Rosario-Daz and Montalvo-Ortiz <br>guilty beyond a reasonable doubt of aiding and abetting the <br>carjacking of Edna Rivera-Hernndez. <br>  The United States argues that Rosario-Daz and Montalvo- <br>Ortiz should have known that Aponte-Laz and his cohorts might <br>choose a carjacking as a way to execute their contract on Edna, <br>because Rosario-Daz (in the presence of Montalvo-Ortiz) gave <br>Aponte-Laz the make and model of Edna's car, as well as some of <br>the numbers from her license plate.  The government also argues <br>that, at the very least, Rosario-Daz and Montalvo-Ortiz had <br>knowledge that a carjacking was likely when they directed Aponte- <br>Laz to the doctor's office and Aponte-Laz opined that such <br>circumstance would facilitate the crime because it would avoid the <br>need to go to Edna's house. <br>  Before directly addressing the sufficiency of the factual <br>evidence in this case, we would note that carjacking is a <br>specialized offense, requiring a specific criminal act and a narrow <br>mens rea.  Rather than criminalizing any offense that involves a <br>vehicle, Congress chose in 18 U.S.C.  2119 to create federal crime <br>only where the vehicle is "taken" by force and violence or by <br>intimidation.  As the Supreme Court held last term in  Holloway v. <br>United States, 119 S. Ct. 966, 970 (1999), the mental state <br>required by the statute ("intent to cause death or serious bodily <br>harm") is measured at the moment that the defendant demands or <br>takes control of the vehicle.  The focus of the statute is narrow. <br>  When viewed in the light most favorable to the <br>prosecution (as indeed we must view all evidence for these <br>purposes), the evidence pointed to by the United States might <br>fairly be deemed to raise a possibility that Aponte-Laz would <br>commit a carjacking.  However, viewed in any light, we simply do <br>not find that evidence to raise such a possibility to the level of <br>a probability or a likelihood.  Based on the instructions and <br>information that Rosario-Daz and Montalvo-Ortiz provided to <br>Aponte-Laz, any of several scenarios were within the realm of <br>possible means of confronting Edna and attempting to retrieve the <br>$200,000--burglary, confronting her near her home, confronting her <br>on the street, confronting her at her car without attempting to <br>"take" the vehicle, confronting her in connection with a <br>carjacking, et cetera.  It is noteworthy that, in addition to <br>information about Edna's car, Rosario-Daz gave Aponte-Laz her <br>home address as well as the location of her school.  In other <br>words, Aponte-Laz was given information by which he might locate <br>Edna at any time during the morning, day, or night, at any of the <br>places that she could be foreseen to be--at home, at school, or <br>elsewhere with her car.  Significantly, the jury was not presented <br>with a single discussion or instruction in which Rosario-Daz or <br>Montalvo-Ortiz mentioned or even alluded to a carjacking.   In sum, <br>we find no evidence whatsoever in the record that could reasonably <br>be considered by the jury to make carjacking more likely than any <br>of the other possible ways in which Aponte-Laz could have carried <br>out Rosario-Daz and Montalvo-Ortiz's instructions.  Where the <br>offense actually committed by the principal is merely one of many <br>(in this case, practically innumerable) possibilities, we see no <br>difference between such "knowledge" and a "general suspicion" that <br>a criminal act is underway or contemplated. <br>  Because there was insufficient evidence in the record for <br>the jury to reasonably find that Rosario-Daz and Montalvo-Ortiz <br>had the requisite foreknowledge that a carjacking would be <br>committed, we must reverse their conviction on Count One of the <br>indictment. <br>  2.  Count Two <br>  Appellants argue that their lack of foreknowledge should <br>also defeat their convictions on Count Two.  We agree. <br>  As we have held many times, "[t]o prove the elements of <br>a conspiracy, the government must show beyond a reasonable doubt <br>that the 'defendant and one or more coconspirators intended to <br>agree and . . . to commit the substantive criminal offense which <br>was the object of their unlawful agreement.'"  United States v. <br>Escobar-de-Jess, 187 F.3d 148, 175 (1st Cir. 1999) (quoting prior <br>cases from this Circuit); see also Salinas v. United States, 118 S. <br>Ct. 469, 477 (1997) ("A conspirator must intend to further an <br>endeavor which, if completed, would satisfy all of the elements of <br>a substantive criminal offense . . . .").  Viewing the evidence <br>presented at trial in the light most favorable to the government, <br>that evidence is insufficient to prove that Rosario-Daz and <br>Montalvo-Ortiz agreed to commit or intended to further a <br>carjacking.  No reasonable jury could have convicted them of such <br>a conspiracy, and we reverse their convictions on Count Two of the <br>indictment. <br>  We take no pleasure in reversing the convictions of two <br>appellants who were proven at trial to be the instigators of a <br>nefarious criminal scheme that led to the brutal rape and murder of <br>a young woman.  The evidence produced at trial left no reasonable <br>doubt that Rosario-Daz and Montalvo-Ortiz conspired with Aponte- <br>Laz to rob and, if necessary, to murder Edna.  Appellants were <br>never charged with such a conspiracy, however, and we are powerless <br>to undo that prosecutorial judgment.  It is not unusual in this day <br>and age for the federal government to prosecute narrow parts of <br>criminal enterprises that would more logically (when viewed as a <br>whole) be adjudicated in local courts.  Indeed, the greater <br>resources available to the federal government, at the investigatory <br>and prosecutorial stages, often counsel in favor of such an <br>approach.  Nevertheless, and irrespective of the hideous nature of <br>the crimes committed, a court of law is required to make its <br>rulings on principled grounds.  There are no such grounds for a <br>ruling in the United States's favor on this issue, given the facts <br>proven by the prosecution, and therefore cannot sustain appellants <br>Rosario-Daz and Montalvo-Ortiz's convictions on Counts One and <br>Two. <br>  B.  Melndez-Garca and Bez-Jurado <br>  The joint brief filed by appellants Melndez-Garca and <br>Bez-Jurado raises several issues on appeal, several of which are <br>applicable to and joined by more than one appellant in this case.  <br>We will address the broadly applicable issues first, and then <br>proceed to the appellant-specific issues. <br>  1.  Improper Bolstering by Agent Huff <br>  Appellants argue that the testimony of FBI Agent Daryl <br>Huff constituted improper bolstering of the testimony of <br>cooperating witness Aponte-Laz.  We review the district court's <br>admission of the challenged testimony under a harmless error <br>standard.  See United States v. Josleyn, 99 F.3d 1182, 1198 (1st <br>Cir. 1996).  Although we are troubled by Huff's testimony, we hold <br>that its admission was harmless error. <br>  The case law is clear, and the parties agree, that <br>prosecutors may not place the prestige of the United States behind <br>a witness by making personal assurances about the credibility of a <br>witness or by indicating that facts not before the jury support the <br>witness's testimony.  See, e.g., United States v. Neal, 36 F.3d <br>1190, 1207-08 (1st Cir. 1994).  It is also undisputed that the <br>prosecution cannot accomplish such improper bolstering of a witness <br>through the testimony of other government witnesses.  See United <br>States v. Mazza, 792 F.2d 1210, 1214-16 (1st Cir. 1986).  <br>Government witnesses may of course testify to facts within their <br>personal knowledge that support or corroborate another witness's <br>testimony.  Indeed, in a case such as this one, where the bulk of <br>critical testimony comes from a single cooperating coconspirator, <br>the prosecution's principal task is often to convince the jury that <br>the witness's account is credible.  The prosecution simply must do <br>so through competent and reliable evidence and not through improper <br>vouching that could invite the jury to find guilt on the basis of <br>something other than the evidence presented at trial. <br>  We have no difficulty concluding that the testimony of <br>Agent Huff was improper.  Although Huff could properly have <br>testified as to the actions he took to corroborate Aponte-Laz's <br>testimony, we think it obvious that he could not properly opine on <br>whether particular statements by Aponte-Laz were "lies," nor could <br>he represent that the statements not singled out as lies had been <br>"tested" and verified through interrogation techniques.  <br>Particularly in light of Huff's testimony concerning his training <br>and experience in interrogation and investigation, the clear <br>purpose and effect of his testimony was to put the prestige of his <br>professional knowledge as a federal agent behind the testimony of <br>Aponte-Laz.  That is the very definition of improper bolstering, <br>and it is impermissible. <br>  Nevertheless, we believe that this case is <br>indistinguishable from United States v. Piva, 870 F.2d 753 (1st <br>Cir. 1989), in which we held that it was not reversible error to <br>admit the testimony of a law enforcement officer detailing out-of- <br>court statements by the defendant.  The Piva panel distinguished <br>our decision in Mazza using words that are equally applicable to <br>the case presently under consideration: <br>    [T]he testimony of [the officer] was admitted <br>  after [defendant's] testimony, whereas in <br>  Mazza the agents' testimony came at the <br>  opening of trial.  Thus we are not faced here <br>  with the Mazza danger that the agent would <br>  testify as to items that would never come into <br>  evidence, nor would [defendant's] testimony be <br>  bolstered by the law enforcement officer <br>  before the jury could evaluate it <br>  independently.  Furthermore, the government <br>  was justified in seeking admission of this <br>  testimony because of the defense's attacks on <br>  the informant's credibility. <br> <br>Id. at 760.  In this case, Aponte-Laz testified extensively before <br>Agent Huff took the stand, and Aponte-Laz was subject to vigorous <br>cross-examination.  Furthermore, the district court took pains to <br>instruct the jury that they were to judge Aponte-Laz's credibility <br>on the basis of his testimony alone, and not that of Agent Huff.  <br>On these facts, and in light of the other probative evidence <br>admitted in this case, we hold that the improper bolstering <br>solicited by the prosecution from Agent Huff was harmless error not <br>warranting reversal.  We nevertheless take this occasion to issue <br>a strong warning against the use of this procedure by government <br>prosecutors and advise that they will tread on thin ice indeed if <br>they continue to practice this technique in the future. <br>  2.  Denial of Motion for New Trial <br>  Appellants next argue that the district court erred in <br>denying a motion for a new trial submitted by appellants after <br>their convictions.  We affirm the district court's ruling. <br>  The day after the guilty verdict was returned in this <br>case, the victim's father gave an interview on local television.  <br>In that interview, Edna's father stated that an FBI agent had told <br>him that the FBI had investigated and found no link between Edna <br>and the defendants or the $200,000 of alleged drug money.  Because <br>this assertion ran directly contrary to the government's theory at <br>trial and apparently contradicted the testimony of Aponte-Laz that <br>Edna had admitted having the money but claimed to have returned it, <br>appellants Rosario-Daz and Montalvo-Ortiz filed a motion for a new <br>trial alleging Brady violations and the discovery of new evidence.  <br>All appellants joined the motion. <br>  After receiving briefs, conducting a hearing, and <br>reviewing the statement of Edna's father, the trial court denied <br>the motion for a new trial on August 6, 1998.  See Opinion and <br>Order of August 6, 1998.  After examining the relevant law, the <br>trial court determined that the agent's statement to Edna's father <br>would be inadmissible (and in any event immaterial) lay opinion and <br>thus was neither discoverable under Brady nor "newly discovered <br>evidence" warranting a new trial under Federal Rule of Criminal <br>Procedure 33.  See id. at  18-21. <br>  We review the denial of a motion for a new trial for <br>abuse of discretion.  See United States v. Montilla, 115 F.3d 1060, <br>1064 (1st Cir. 1997).  We also note that a new trial is generally <br>warranted only in the rare circumstance where retrial is necessary <br>to prevent a miscarriage of justice.  See United States v. <br>Gonzlez-Gonzlez, 136 F.3d 6, 12 (1st Cir. 1998).  After carefully <br>reviewing the record and the law, we hold that the district court <br>did not abuse its discretion in denying the motion for a new trial. <br>  First, the agent's statement to the victim's father <br>cannot itself warrant a new trial.  Because it was made after <br>trial, the prosecution cannot be faulted for failing to produce it <br>as Brady material.  Even if a new trial were granted, the agent's <br>statement might very well be excluded as inadmissible hearsay or, <br>as the district court opined, inadmissible lay opinion testimony.  <br>Moreover, even if admitted, the testimony is to a lack of evidence, <br>not to some talismanic piece of evidence affirmatively proving or <br>disproving a connection.  Its probative value, therefore, would be <br>questionable. <br>  Second, we do not agree with appellants' implicit <br>contention that the agent's statement necessarily indicates that <br>the prosecution possessed other exculpatory evidence at the time of <br>trial.  Again, the agent's alleged statement was that the FBI had <br>failed to establish a connection between Edna and the drug <br>operation.  We decline to speculate that the government had <br>affirmatively disproved any connection, and we certainly should not <br>and will not require the prosecution to report back to the defense <br>every time an investigation fails to produce the results that the <br>government intended.   <br>  Third, we agree with the district court that appellants' <br>motion for a new trial failed to demonstrate a sufficient <br>likelihood that the "evidence" derived from the statement would <br>change the outcome of the trial.  At best, the information would <br>allow the defense to (1) impeach Aponte-Laz's testimony that Edna <br>had admitted having and returning the drug money and (2) dispute <br>the alleged motive for carjacking Edna--to retrieve the $200,000.  <br>As the United States points out, Edna's connection to the <br>defendants or to the money is not an element of any crime charged <br>nor an alleged overt act of the conspiracy.  Furthermore, whether <br>or not Edna was in fact involved with the drug operations is <br>ultimately irrelevant to appellants' guilt for carjacking and <br>killing her. <br>  Under the circumstances, we conclude that the district <br>court did not err in denying the motion for a new trial. <br>  3.  Sufficiency of the Evidence <br>  Appellants argue that the evidence submitted at trial was <br>insufficient to sustain the jury's guilty verdicts against them, <br>because the inculpatory evidence presented at trial consisted <br>almost exclusively of the testimony of cooperating witness Aponte- <br>Laz.  Appellants argue that Aponte-Laz's testimony is <br>unbelievable because Aponte-Laz admitted to lying to agents and <br>others at various times and because of Aponte-Laz's history of <br>criminal behavior.  Again, we review a district court's Rule 29 <br>determinations de novo.  See United States v. Hernndez, 146 F.3d <br>30, 32 (1st Cir. 1998). <br>  Appellants correctly note that we have held the <br>uncorroborated testimony of a cooperating accomplice sufficient to <br>sustain a conviction, unless that testimony is facially incredible.  <br>See United States v. Andjar, 49 F.3d 16, 21 (1st Cir. 1995).  <br>Aponte-Laz's testimony in this case was not facially incredible.  <br>It is true that, given the circumstances surrounding the crimes <br>committed, Aponte-Laz's participation therein, and his obvious <br>motive to testify favorably for the government, Aponte-Laz's <br>credibility was subject to challenge.  This, however, was <br>vigorously done by appellants at every opportunity during trial, <br>before those charged with weighing credibility--the jury.  <br>Appellants offer us no basis for determining that the jury's <br>credibility determination is unsupportable other than the evidence <br>that the jury itself considered and rejected.  Because Aponte- <br>Laz's testimony is not facially unbelievable, we hold that his <br>testimony alone provided the jury with enough evidence to support <br>the convictions of Melndez-Garca, Bez-Jurado, and Lpez-Morales.  <br>Furthermore, the evidence against Melndez-Garca and Bez-Jurado <br>included their own inculpatory statements to law enforcement.  <br>Consequently, we decline to reverse the convictions of Melndez- <br>Garca, Bez-Jurado, or Lpez-Morales on sufficiency-of-the- <br>evidence grounds. <br>  4.  Improper Sentence Imposed for Conspiracy Conviction <br>  Next, appellants have joined the argument, best <br>articulated in the brief of appellants Rosario-Daz and Montalvo- <br>Ortiz, that the district court erred in imposing life sentences for <br>appellants' convictions on Count Two, which charged them with <br>conspiracy in violation of 18 U.S.C.  371.  The United States <br>concedes that 18 U.S.C.  371 provides for imprisonment of "not <br>more than five years."  The district court clearly erred in <br>imposing life sentences on Count Two, and we vacate the sentences <br>of Melndez-Garca, Bez-Jurado, and Lpez-Morales on Count Two and <br>remand for resentencing. <br>  5.  Unfair Prejudice from Evidence Against Other     <br>       Defendants <br> <br>  Finally, appellants jointly argue that the substantial <br>evidence admitted against other defendants, particularly Rosario- <br>Daz and Montalvo-Ortiz, unfairly prejudiced them by allowing the <br>jury to convict them on the basis of evidence relating to other <br>defendants' conduct.  In essence, appellants challenge the district <br>court's denial of their requests for severance.  We conclude that <br>there was no reversible error. <br>  At trial, the United States offered a great deal of <br>testimony detailing the drug trafficking activities of defendants <br>Rosario-Daz and, to a lesser extent, Montalvo-Ortiz.  The <br>government did not allege nor prove that the other defendants were <br>involved in those illegal activities.  Appellants now argue that <br>the evidence against Rosario-Daz and Montalvo-Ortiz improperly <br>affected the jury's verdicts, and they request that we reverse <br>their convictions. <br>  We have recognized this kind of "spillover" claim before.  <br>See, e.g., United States v. Drougas, 748 F.2d 8, 18-19 (1st Cir. <br>1984).  In Drougas we stated that, "[i]n a case involving several <br>defendants, the court must take care that evidence against one <br>defendant is not misinterpreted by the jury and used as a basis for <br>convicting another defendant not connected to that evidence."  Id. <br>(citing United States v. Flaherty, 668 F.2d 566, 582 (1st Cir. <br>1981).  After stating that the district court's severance <br>determinations should be overturned only upon a showing of strong <br>prejudice, see id., we nevertheless concluded that the trial <br>court's careful instructions to the jury and the ample evidence <br>against the defendant eliminated any possibility of unfair <br>prejudice. <br>  We likewise conclude that the admission of the drug- <br>related evidence in this case was not an abuse of discretion.  The <br>evidence of Rosario-Daz's drug trafficking was clearly relevant in <br>that it connected Rosario-Daz to Edna, supported the government's <br>theory on motive, and corroborated the critical testimony of <br>Aponte-Laz.  The drug trafficking evidence can also be viewed as <br>necessary to complete the story of the conspiracy and carjacking <br>charged in this case, in that drugs are the common denominator <br>linking the various characters. <br>  Moreover, there was ample evidence admitted against each <br>appellant to reduce the risk of an unfounded guilty verdict.  As <br>discussed above, the government presented substantial evidence of <br>guilt, primarily through the testimony of Aponte-Laz but also, at <br>least in the cases of Melndez-Garca and Bez-Jurado, through the <br>appellants' own inculpatory statements to investigators.  Although <br>the record does not reflect the extensive corrective instructions <br>given to the jury in Drougas, we nevertheless hold that the <br>evidence of drug trafficking in this case did not create a <br>sufficient risk of unfair prejudice to warrant reversal and <br>severance. <br>  6.  Melndez-Garca's Waiver of Rights and Consent to  <br>       Search <br> <br>  Turning now to the appellant-specific arguments raised in <br>appellants' joint brief, we consider first the issues raised by <br>appellant Melndez-Garca.  Melndez-Garca first argues that her <br>statements to the FBI and the evidence recovered in the search of <br>her residence should have been suppressed because her waivers were <br>not "knowing and intelligent" and because her statements and <br>consent to search were not voluntary.  After reviewing the record, <br>we conclude that there was no error in the admission of this <br>evidence. <br>  We review the district court's rulings on these issues <br>for clear error.  See United States v. Cardoza, 129 F.3d 6, 13 (1st <br>Cir. 1997) (Fourth Amendment challenge); United States v. Santos, <br>131 F.3d 16, 18 (1st Cir. 1997) (Fifth Amendment challenge). <br>  The question before the district court was whether the <br>government demonstrated by a preponderance of the evidence, see <br>Colorado v. Connelly, 479 U.S. 168 (1986), that Melndez-Garca's <br>waiver and consent were both "voluntary in that [they] were the <br>product of a free and deliberate choice rather than intimidation, <br>coercion and deception" and also made with "full awareness of both <br>the nature of the right being abandoned and the consequences of the <br>decision to abandon," Moran v. Burbine, 475 U.S. 412, 420 (1986).  <br>The court's determination must be made in light of "the totality of <br>the circumstances and the facts surrounding the particular case <br>including the background experience and conduct of the accused."  <br>United States v. Garca, 983 F.2d 1160, 1169 (1st Cir. 1993). <br>  Melndez-Garca admits to signing a written waiver of her <br>Miranda rights and a written consent to search her residence. <br>However, she claims that the district court could not have properly <br>found her waiver of her Fourth and Fifth Amendment rights to be <br>knowing and intelligent and voluntary, based on the evidence that <br>she has a very low I.Q. and that she was interviewed by law <br>enforcement over a period of some six hours. <br>  The trial court received a substantial amount of evidence <br>regarding Melndez-Garca's mental capacity, including expert <br>testimony from both sides.  Although the court received evidence <br>that Melndez-Garca's I.Q. was in the middle 70s and that she had <br>no prior involvement with the criminal justice system, the court <br>also heard testimony from an arresting officer and the government's <br>expert witness that Melndez-Garca understood what was happening <br>when she waived her Fifth Amendment rights and consented to the <br>search. <br>  The district court also received evidence relating to the <br>voluntariness of Melndez-Garca's decisions.  Although Melndez- <br>Garca herself testified that she felt very scared and physically <br>ill, there was no evidence whatsoever of physical coercion or <br>intimidation, nor was there any indication of conduct by the law <br>enforcement agents that would amount to psychological coercion or <br>intimidation. <br>  Viewing the totality of the circumstances particular to <br>this case, we cannot conclude that the district court clearly erred <br>in its determination that Melndez-Garca's waiver and consent were <br>knowing and intelligent and made voluntarily.  We therefore affirm <br>the district court's decision on this issue. <br>  7.  Denial of Downward Departure <br>  Appellant Melndez-Garca also argues that the district <br>court should have awarded her a downward departure under  5K2.13 <br>of the Sentencing Guidelines.  On appeal, she suggests that the <br>court should have taken into consideration both her diminished <br>mental capacity and her role in caring for Edna's baby after the <br>crime. <br>  We first note that a district court's decision not to <br>depart from the Sentencing Guidelines is ordinarily not appealable <br>unless the record indicates some error of law such as a <br>misapprehension of the applicable guideline or a miscalculation of <br>the sentencing court's authority.  See United States v. <br>Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996).  Appellant points to <br>no such legal error in the record, arguing instead that the <br>district court simply denied her a departure to which she was <br>entitled.  We are therefore without jurisdiction to review the <br>district court's refusal to grant a departure. <br>  8.  Voluntariness of Bez-Jurado's Statements to  <br>    Investigators <br> <br>  The final issue raised by appellant Bez-Jurado is a <br>challenge to the admission into evidence of his inculpatory <br>statements to investigators the day following his detention.  <br>Although the trial court's determination of voluntariness is <br>subject to de novo review, its factual findings are reviewed for <br>clear error.  See United States v. Santos, 131 F.3d 16, 18-19 (1st <br>Cir. 1997).  Because we conclude that the statements were <br>voluntary, we affirm the admission of the statements at trial. <br>  Bez-Jurado's principal contention is that he was <br>detained for twenty-eight hours before being brought before a <br>magistrate, and that the government's proffered reasons of <br>administrative delay and unavailability of a magistrate are not <br>credible.  However, Bez-Jurado does not point to any evidence of <br>physical or psychological coercion by law enforcement, nor does he <br>specify how the delay in his initial appearance rendered his <br>confession involuntary.  Furthermore, delay in appearing before a <br>magistrate is only one of several factors to be considered in <br>determining voluntariness.  See 18 U.S.C.  3501(b) (listing <br>several illustrative and nonconclusive factors).  None of the other <br>factors suggesting involuntariness have been shown.  Consequently, <br>we find no error in the district court's determination that the <br>statements were admissible. <br>  C.  Lpez-Morales <br>  In addition to the arguments addressed above, appellant <br>Lpez-Morales challenges the district court's admission of two <br>types of evidence. <br>  1.  Evidence of Plan to Kill Government Witnesses <br>  At trial, the government presented evidence, through the <br>testimony of Aponte-Laz, that Aponte-Laz and Lpez-Morales agreed <br>to a plan by which Aponte-Laz would exonerate Lpez-Morales to the <br>authorities so that Lpez-Morales would be released and then murder <br>witnesses expected to testify for the government.  Lpez-Morales <br>now argues that this evidence was irrelevant, unfairly prejudicial, <br>and that its admission implicitly amended the indictment in <br>violation of the Grand Jury Clause of the Fifth Amendment.  We <br>generally will reverse a district court's admissibility <br>determinations under Federal Rules of Evidence 402 and 403 only in <br>extraordinarily compelling circumstances, see United States v. <br>Brandon, 17 F.3d 409, 443 (1st Cir. 1994), although we consider <br>Lpez-Morales's constitutional challenge de novo. <br>  First, we find the evidence of the plot to be plainly <br>relevant to Lpez-Morales's guilt in the carjacking, insofar as it <br>evinces a consciousness of guilt.  See United States v. Gonsalves, <br>668 F.2d 73, 75 (1st Cir. 1982).  Likewise, we cannot find that the <br>district court abused its discretion in admitting the evidence <br>under Federal Rule of Evidence 403.  Although we agree with <br>appellant that the evidence is prejudicial to his defense in a <br>generic sense (as is all probative evidence of guilt), we are not <br>persuaded that it was unfairly so.  The jury had every opportunity <br>to weigh Aponte-Laz's testimony, and, once accepted, that <br>testimony was properly held against Lpez-Morales. <br>  Lpez-Morales's Fifth Amendment argument is more <br>substantial.  As we recognized in United States v. Dunn, 758 F.2d <br>30, 35 (1st Cir. 1985), the admission of evidence of an offense not <br>charged in the indictment can, in some circumstances, constitute <br>grounds for reversal of a conviction.  See also Stirone v. United <br>States, 361 U.S. 212 (1960).  The Grand Jury Clause of the Fifth <br>Amendment guarantees that no person shall be tried and convicted of <br>a crime in federal court lest his fellow citizens have seen fit to <br>charge him with such crime.  If the court permits the jury to <br>convict a defendant on evidence of a crime not included in the <br>indictment, that constitutional right is violated.  See id. at 273 <br>(quoting Ex parte Bain, 121 U.S. 1, 10 (1887)). <br>  This important rule, however, is not as broad as <br>appellant would have us proclaim.  Although an indictment may not <br>be constructively amended by presenting evidence of uncharged <br>offenses, there are many instances in which evidence of uncharged <br>conduct is properly admitted in a criminal trial.  Rule 404(b) of <br>the Federal Rules of Evidence, for instance, states that evidence <br>of uncharged crimes, wrongs, or acts may be admitted to prove <br>"motive, opportunity, intent, preparation, plan, knowledge," etc.  <br>Such evidence, because ultimately offered to prove guilt of the <br>charged offense, effects no constructive amendment of the <br>indictment and therefore does not infringe on a defendant's Fifth <br>Amendment rights.  Likewise, in this case the United States offered <br>evidence of the plan to kill government witnesses for a number of <br>legitimate reasons aimed ultimately at proving the charged <br>offenses, including to prove consciousness of guilt and to explain <br>the inconsistency between Aponte-Laz's initial exoneration of <br>Lpez-Morales and his subsequent change in testimony.  We find no <br>constructive amendment of the indictment and no reversible error. <br>  2.  Evidence of Rape <br>  The United States also presented the jury with evidence <br>that Lpez-Morales participated in the rape of Edna before she was <br>murdered.  Lpez-Morales argues that this evidence should have been <br>excluded as irrelevant or, at least, as unfairly prejudicial, <br>because rape was not an element of the offense charged--carjacking <br>that resulted in death, under 18 U.S.C.  2119(3).  Again, we <br>reverse a district court's Rule 402 and 403 determinations only <br>rarely and only upon demonstration of extraordinary circumstances.  <br>See Brandon, 17 F.3d at 443. <br>  The trial judge did not abuse his discretion in admitting <br>the evidence of rape in this case.  There can be no reasonable <br>dispute that the rape evidence was inseparably intertwined with the <br>carjacking and murder, and the evidence presented to the jury was <br>necessary to complete the story of the crime charged in the <br>indictment, even though that indictment charged appellant with a <br>carjacking that resulted in death rather than the lesser crime of <br>a carjacking resulting in bodily injury.  Although the evidence was <br>certainly powerful, there was no error in the trial judge's <br>determination that its probative value was not substantially <br>outweighed by any possibility of unfair prejudice.  Cf. Fed. R. <br>Evid. 403. <br>                         III.  CONCLUSION <br>  In conclusion, the convictions of appellants Rosario-Daz <br>and Montalvo-Ortiz must be reversed for insufficiency of evidence.  <br>The convictions of appellants Melndez-Garca, Bez-Jurado, and <br>Lpez-Morales are affirmed, although we must vacate their sentences <br>on Count Two of the indictment and remand to the district court for <br>resentencing. <br>  Affirmed in part, reversed in part.</pre>

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