
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1781                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                HERMINIO PEREZ-PEREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Selya and Boudin, Circuit Judges,                                             ______________                             and Saris,* District Judge.                                         ______________                                 ____________________            Harry Anduze Montano for appellant.            ____________________            Louis  Peraertz,  Department  of  Justice,  with  whom  Deval   L.            _______________                                         __________        Patrick,  Assistant  Attorney General,  Dennis J.  Dimsey and  Lisa J.        _______                                 _________________      _______        Stark, Department of Justice, were on brief for the United States.        _____                                 ____________________                                  December 26, 1995                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN,  Circuit  Judge.    Herminio   Perez  Perez  was                          ______________            formerly a  sergeant with the Puerto  Rico Police Department.            In  1989, he was charged under Puerto Rico law with attempted            murder and concealing evidence.  The charges stemmed from  an            incident in which Perez allegedly shot and wounded two riders            on a motorcycle  while seeking to bring it to  a halt.  Perez            was  tried in Puerto Rico Superior Court and acquitted by the            jury on both counts.                 In  1992, Perez was indicted by a federal grand jury, in            connection with the same  shooting incident, and charged with            deprivation  of rights under color of law, in violation of 18            U.S.C.   242, and using a firearm during the  commission of a            crime of  violence, in violation of  18 U.S.C.    924(c).  In            1993,  a jury  convicted Perez  on both  charges, and  he was            sentenced  to  106 months'  imprisonment.    He now  appeals,            raising a variety of different claims of error.                   1.   In the district  court, Perez moved  to dismiss the            federal convictions on double  jeopardy grounds.  Although he            conceded that  successive state and federal prosecutions were            permitted  under the  doctrine of  "dual sovereignty,"  Perez            maintained  that  Puerto  Rico  should not  be  considered  a            sovereign distinct  from the  federal government.   The trial            judge  denied  the  motion,  adhering to  precedent  in  this            circuit.  United States v. Lopez Andino, 831 F.2d 1164, 1167-                      _____________    ____________            68 (1st Cir. 1987).                                           -2-                                         -2-                 Successive prosecutions even  by the  same sovereign  do            not  violate the  double  jeopardy principles  if the  second            prosecution involved substantively different offenses.  Under            the test of Blockburger  v. United States, 284 U.S.  299, 304                        ___________     _____________            (1932),  readopted in United States v. Dixon, 113 S. Ct. 2849                                  _____________    _____            (1993), offenses are "different" for this purpose so  long as            "each [offense]  requires proof  of an additional  fact which            the other  does not".   Even  were we  here concerned with  a            single  sovereign, Perez' claim  would fail under Blockburger                                                              ___________            because the federal offenses and the  Puerto Rico offenses do            have different elements.                 The  attempted murder  charge  under  Puerto  Rico  law,            unlike the federal civil  rights offense, requires proof that            a  defendant  acted  with the  intent  to  kill  or with  the            foreseeable  consequence of  causing death.   P.R.  Laws Ann.            tit.  33    3062, 4001  (1991); People v. Betancourt Asencio,                                            ______    __________________            110 P.R.  Dec.  510 (1980).   Conversely,  the federal  civil            rights  charge in  this case  required proof of  elements not            required by the attempted  murder charge, including a showing            that  the defendant acted  under color of  law.   18 U.S.C.              242.                 The only  two charges  that even vaguely  resembled each            other are  the two just  discussed.  The  remaining charges--            concealment  of evidence  under  local law  and the  firearms            violation under  federal law--are not even  arguably the same                                         -3-                                         -3-            charge as each  other or  as either the  attempted murder  or            civil rights  charge.   In sum, Blockburger  disposes of  the                                            ___________            double jeopardy claim, so  the result would be the  same even            if Lopez Andino had never been decided.                ____________                 2.  As a fall-back position, Perez argues that under the            doctrine of collateral estoppel,  the federal prosecution was            barred  because it  required relitigation  of factual  issues            resolved in Perez' favor during the Puerto Rico trial.  Perez            suggests that his acquittal  on murder charges was equivalent            to  a  finding  that  he  had not  used  unreasonable  force,            unreasonable  force being  the premise  of the  federal civil            rights charge.  United States v. McQueeney, 674 F.2d 109, 113                            _____________    _________            (1st Cir. 1982).                 Although the doctrine of  collateral estoppel applies in            criminal cases, Ashe v. Swenson, 397 U.S. 436, 443-44 (1970),                            ____    _______            the  party to be precluded must have  been the same as, or in            privity with, the party  who lost on that issue in  the prior            litigation.   United States v.  Bonilla Romero, 836  F.2d 39,                          _____________     ______________            42-44 (1st Cir. 1987).  Perez makes no effort to adduce facts            showing  privity in this case between federal and Puerto Rico            prosecutors,  possibly because  he  thinks  that his  "single            sovereign" argument establishes  an identity between the  two            governments,  an argument this  court has previously rejected            in Bonilla Romero itself.  Id.               ______________          ___                                         -4-                                         -4-                 But all this  makes no  difference to  the outcome,  for            even  assuming identity or  privity among  prosecutors, Perez            has  not shown  that any  fact previously  determined in  his            favor in the local trial was relitigated in the federal case.            A defendant can be  acquitted of attempted murder even  if he            used excessive force.  To be sure, Perez could have sought to            show  from  the court  records of  the  first trial  that the            excessive  force issue, or  some other issue  critical in the            federal trial, was actually  tried and necessarily decided in            his favor in the first case, but he has made  no such showing            here.   United States  v. Aquilar-Aranceta, 957  F.2d 18,  23                    _____________     ________________            (1st Cir. 1992).    3.  Perez says that the trial judge erred            by  instructing the  jury, prior to  closing argument  by the            government, to "give close attention" to the prosecutor.  The            trial judge  made no similar remark  before defense counsel's            closing,  and Perez asserts  that this discrepancy improperly            "carried the weight of the judge to one side of the balance."            Perez did not raise this issue in the district court when the            discrepancy could  easily have  been corrected, so  we review            only for plain error.  United States v. Olivier-Diaz, 13 F.3d                                   _____________    ____________            1, 5 (1st Cir. 1993).                 The  challenged  remark was  innocuous in  isolation and            could  not have prejudiced the jury  unless it were part of a            pattern of remarks favoring the government.  No  such pattern            is alleged  or  apparent  from the  record.    Indeed,  while                                         -5-                                         -5-            discussing  closing arguments generally, the judge admonished            the  jury to "give  your close attention  to the [prosecution            and defense] attorneys while they address you."  In the final            charge, the judge told the jury that he had no opinion in the            case  and   that  anything  suggesting  otherwise  should  be            disregarded.  We see no error, let  alone plain error, in the            challenged remark.                     4.   Perez next asserts that the district court erred in            not permitting the defense to offer the testimony of Sergeant            Neftalie Hernandez  Santiago to impeach the  credibility of a            government witness,  officer Ricardo  Nieves  Lopez.   During            cross-examination,   Nieves   conceded  that   fellow  police            officers,  including Hernandez,  had accused  him of  various            incidents  of  misconduct.    Nieves  maintained  that  these            allegations were baseless and had been made only to retaliate            for  his testimony  in Perez'  previous trial.    The defense            called officer Hernandez to  elicit testimony that Nieves had            engaged in the alleged misconduct.                  The district  court in excluding the Hernandez testimony            referred to  Fed. R. Evid. 608(b),  which precludes extrinsic            evidence of bad  acts (other than convictions)  to support or            attack the  credibility of a witness.   The notion underlying            the rule  is that while certain  prior good or bad  acts of a            witness   may  constitute   character  evidence   bearing  on                                        _________            veracity, they are  not evidence of  enough force to  justify                                         -6-                                         -6-            the  detour  of extrinsic  proof.   Thus, Rule  608(b) barred            Hernandez' testimony insofar  as it was offered to  show that            Nieves had a propensity to lie.                 Of  course,  Hernandez' testimony  would  not only  have            suggested that  Nieves was  of bad  character but  would also            have contradicted  Nieves' own denials on  the witness stand.            Impeachment  by   contradiction  is  a  recognized   mode  of                              _____________            impeachment  not governed by Rule  608(b), 28 C.  Wright & V.            Gold, Federal Practice and  Procedure   6118, at 103  (1993),                  _______________________________            but by  common-law principles.  United  States v. Innamorati,                                            ______________    __________            996  F.2d 456, 479-80 (1st  Cir. 1993), cert.  denied, 114 S.                                                    _____________            Ct.  409  (1993).     But,  again  largely   for  reasons  of            efficiency, extrinsic evidence to  impeach is only admissible            for   contradiction   where   the   prior   testimony   being            contradicted  was itself material to  the case at  hand.  Id.                                                                      ___            Here, Nieves'  alleged misconduct was not  material to Perez'            guilt or innocence.                 Finally, Perez'  brief says  that  Hernandez would  also            have testified that Nieves' reputation for veracity was poor.                                        __________            Reputation  evidence of  this kind  is sometimes  admissible,            Fed. R.  Evid. 608(a), although  its weight is  usually quite            limited--precisely     because    specific     examples    of            untruthfulness  cannot   be  elicited  in  support.     3  J.            Weinstein, M.  Berger & J.  McLaughlin, Weinstein's  Evidence                                                    _____________________            para. 608[3], at 608-28 (1995).  In all events, Perez did not                                         -7-                                         -7-            advise  the  trial  court  of  this  facet  of  the  proposed            testimony,  so the argument is effectively lost.  See Fed. R.                                                              ___            Evid. 103(a)(2).                 5.   Finally, Perez claims that the trial court erred in            declining  to adjust  his  sentence downward  two levels  for            acceptance of  responsibility, pursuant to U.S.S.G.    3E1.1.            Since  this claim  was not  made in  the district  court, our            review is limited to  plain error.  Olivier-Diaz, 13  F.3d at                                                ____________            5.  In support of his claim, Perez offers only a statement in            the presentence report indicating that he "expressed  remorse            for his  wrongdoing and  accepted  responsibility for  same,"            although  the  probation  officer ultimately  concluded  that            Perez was not entitled to a downward adjustment.                   In all events, the record  shows that Perez continued to            deny responsibility for his crime at sentencing, stating that            he  lacked  criminal intent  at the  time  of the  crimes and            declaring his innocence.  Thus,  there is no indication  that            the trial judge committed an error, let alone plain error, in            denying a downward adjustment.  U.S.S.G.    3E1.1(a).  Perez'            further  suggestion that the district court had to recite its            reasons for denying the  downward adjustment is mistaken; the            reasons  were and are apparent  from the record.   See United                                                               ___ ______            States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991).                 ______    _______                 Affirmed.                 ________                                         -8-                                         -8-
