
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-2217        No. 95-1390                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JOSE R. CRUZ-KUILAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                       Selya, Boudin, and Lynch, Circuit Judges.                                                 ______________                                 ____________________            Miriam Ramos Grateroles for appellant.            _______________________            Miguel A.  Pereira, Assistant  United States  Attorney, with  whom            __________________        Guillermo  Gil, United States Attorney,  was on brief,  for the United        ______________        States.                                 ____________________                                   February 5, 1996                                 ____________________                      LYNCH, Circuit  Judge.   This is an  appeal from  a                      LYNCH, Circuit  Judge.                             ______________            conviction for a  carjacking which resulted  in the owner  of            the car being shot  to death in front of his  wife and son in            the  carport of their home in Puerto Rico.  Jose Cruz-Kuilan,            age 20  at the time of the  crime, was convicted of violating            18  U.S.C.   2119(3), the carjacking statute, and 18 U.S.C.              2, aiding and  abetting in  the same, and  sentenced to  life            imprisonment.   The primary argument on appeal -- that it was            error to  allow expert testimony from  a forensic pathologist            and to admit photographs  of the victim's wounds --  is based            on  a theory this court recently rejected in United States v.                                                         _____________            Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995).  Because the other            ____________            arguments presented are without merit, we affirm.                      The crime was cold-blooded and brutal.  Cruz-Kuilan            and  two companions,  Marrero  Santiago  and Rangel  Pizzini,            decided to steal a car, settled on a Buick Le Sabre they saw,            and followed it  in their own car.   Theodore Edward  Fuhs, a            businessman, and his wife Luz  Martinez Fuhs were driving  to            their  home  in  Levittown, Puerto  Rico,  in  the  Le Sabre,            unaware of being followed.   Their son Carl was  outside when            his  parents  pulled  into  the  "marquesina,"  the  carport.            Marrero and Cruz-Kuilan walked  up to the car before  Mr. and            Mrs. Fuhs could get out.  Pizzini remained in the assailants'            car.   In Spanish, Marrero  ordered Mr. Fuhs out  of the car.            Mr.  Fuhs, a continental American citizen,  did not appear to            understand.  As  Mr. Fuhs got out of the  car, Marrero, angry                                         -3-                                          3            at  how slowly Fuhs was  moving, pistol whipped  him twice on            the head.   Mr.  Fuhs  lunged for  Marrero  and the  two  men            toppled.   Cruz-Kuilan moved to  within two feet  of Mr. Fuhs            and fired point  blank at his  back.  Mr.  Fuhs was  mortally            wounded.  One of  the bullets  passed through  him to  injure            Marrero, underneath.  Cruz-Kuilan and Marrero got into the Le            Sabre and fled.   Realizing  Marrero was in  need of  medical            care and would be  questioned, they torched the Le  Sabre and            prepared a story.   When Marrero sought medical care,  he was            indeed  questioned.    His story  began  to  unravel and  the            arrests followed in the next several months.                      At   trial,  both   Marrero   and  Pizzini   turned            government  witnesses   in  exchange  for  leniency.     They            identified Cruz-Kuilan.  While Mrs. Fuhs and her son provided            important  corroborating  testimony,  neither could  identify            Cruz-Kuilan as one of the assailants.   It took the jury  two            and one-half hours to convict.                      On  appeal Cruz-Kuilan  makes these  arguments: (i)            that the district court  erred in admitting evidence relating            to Mr. Fuhs'  death; (ii) that the evidence  was insufficient            for  a  guilty verdict;  (iii)  that  the prosecutor  in  his            closing argument improperly  vouched for  the credibility  of            the government's witnesses; and  (iv) that the district court            erred  in denying a new trial  motion based on after-acquired            evidence of a government witness' prior bad acts.                                                     -4-                                          4            I. Admissibility of Evidence of Death            _____________________________________                      Cruz-Kuilan's main argument is that he  was charged            with  carjacking,1 not with murder,  and so it  was error for            the trial court  to admit evidence  of Mr. Fuhs'  death.   In            particular, he  complains about  the testimony of  a forensic            pathologist who  traced the path  of the bullets  through Mr.            Fuhs' body and of  the admission of photographs of  Mr. Fuhs'            wounds.  Such  evidence, he  says, was not  relevant and  was            unduly prejudicial.  The statute itself, though, requires not            just  theft  of a  car while  possessing  a firearm,  but the            taking of  a car from  another "by  force and violence  or by            intimidation, or attempts to do so." 18 U.S.C.   2119.                        The   global  challenge  to  the  admissibility  of            evidence of death  in a carjacking case  was soundly rejected                                            ____________________            1.  The carjacking statute provides:                      Whoever, possessing a firearm . . . takes                      a   motor   vehicle    that   has    been                      transported,  shipped,   or  received  in                      interstate or foreign  commerce from  the                      person  or presence  of another  by force                      and  violence  or  by   intimidation,  or                      attempts to do so, shall --                      (1)   be  fined   under  this   title  or                      imprisoned not  more  than 15  years,  or                      both,                      (2)  if  serious  bodily  injury  .  .  .                      results, be  fined  under this  title  or                      imprisoned  not  more than  25  years, or                      both, and                      (3) if death results, be fined under this                      title  or  imprisoned for  any  number of                      years up to life, or both.            18 U.S.C.   2119 (Supp. V 1993).                                         -5-                                          5            in United States  v. Rivera-Gomez, 67  F.3d 993, 996-98  (1st               _____________     ____________            Cir.  1995) ("It is difficult  to conceive of  a situation in            which the death  of a victim will not be  relevant to the use            of force  and violence during the commission  of an attempted            carjacking.")  (citing  United  States v.  Rodriguez,  871 F.                                    ______________     _________            Supp. 545, 549 (D.P.R.  1994) (admitting evidence of victim's            death  and means by which it was accomplished as relevant and            "highly persuasive"  of "force and violence"  in a carjacking            prosecution)).  The death in this case was  a central part of            the carjacking and  its "force and  violence" component.   As            such it was relevant.                      Cruz-Kuilan  argues  that  even  if  relevant,  the            evidence was "unfairly prejudicial" under Rule 403.  See Fed.                                                                 ___            R. Evid. 403.  But here, as in Rivera-Gomez, the "evidence at                                           ____________            issue  [was] so  tightly linked  to guilt  as defined  by the            elements  of the  offense,  [that] it  would be  surpassingly            difficult to  justify a finding of  unfair prejudice stemming            from its introduction."  67 F.3d at 997.  The photographs and            testimony  by  a  forensics  expert  went to  more  than  the            determination of the "force and violence" element.  They also            went to  corroborating the  government's theory of  the case.            The  evidence showed  lacerations on Mr.  Fuhs' head  and the            entry  and exit points of the bullets that passed through his            body.    The  lacerations  on  Mr.  Fuhs'  head  corroborated            Marrero's  story that  he had  struck Mr.  Fuhs twice  on the                                         -6-                                          6            head.  Similarly, the  paths of the bullets  corroborated the            government's theory  that one  of the bullets  shot by  Cruz-            Kuilan passed through  Mr. Fuhs and proceeded  to hit Marrero            while he was under Mr. Fuhs.                      Our standard  of review on questions of evidentiary            relevance balanced against prejudicial effect is for abuse of            discretion.  Id.  at 997.  "A decision  by the district court                         ___            on a Rule 403 determination must stand absent a demonstration            of  'extraordinarily  compelling  circumstances.'"     United                                                                   ______            States  v. Lombard, _ F.3d _, _,  No. 94-2000, slip op. at 50            ______     _______            (1st  Cir. Dec. 15, 1995) (quoting United States v. Lewis, 40                                               _____________    _____            F.3d 1325, 1339  (1st Cir.  1994)).  Defendant  has shown  no            such circumstances, and there was no abuse.            II. Sufficiency of Evidence            ___________________________                      Cruz-Kuilan  argues  that  there  was  insufficient            evidence for the  jury to have found  him guilty, and  so the            district court erred in not granting his motion for acquittal            under Fed. R. Crim. Proc. 29.  In reviewing a sufficiency  of            the evidence claim we  look at the evidence in the light most            favorable to the verdict.  See United States v. Cotto-Aponte,                                       ___ _____________    ____________            30 F.3d 4, 5 (1st Cir. 1994).                      The argument fails.  That the jury chose to believe            the  testimony of Cruz-Kuilan's  fellow carjackers -- despite            his pungent cross examination of their characters and motives            --  and  to disbelieve  the  alibi  offered by  Cruz-Kuilan's                                         -7-                                          7            estranged  wife and  mother,  was well  within its  province.            Credibility determinations  are  uniquely within  the  jury's            province,  and we defer to the jury's verdict if the evidence            can support varying inferences.  See United States v. Rivera-                                             ___ _____________    _______            Sola, 713 F.2d  866, 869  (1st Cir. 1983);  United States  v.            ____                                        _____________            Winter, 663  F.2d 1120, 1127  (1st Cir. 1981),  cert. denied,            ______                                          _____ ______            460 U.S. 1011 (1983).            III.  Closing Argument            ______________________                      Cruz-Kuilan  makes   a  misplaced  attack   on  the            prosecution's  closing argument.   Pulling  together numerous            statements  made by  the  prosecution in  its closing,  Cruz-            Kuilan asserts  that the  prosecution improperly vouched  for            the  credibility of  its witnesses.   Since no  objection was            made at  the time, our review is for plain error.  See United                                                               ___ ______            States v. Diaz-Martinez, 71 F.3d 946, 950 (1st Cir. 1995).            ______    _____________                      In  essence, defendant  objects  to  statements  in            closing by  the  prosecution that  the  jury should  come  to            believe  on the evidence that the events occurred the way the            government's witnesses said they did.  That is not vouching.                      Improper  vouching  occurs  where  the  prosecution            places the  "prestige of the  government behind a  witness by            making  personal assurances about  the witness' credibility."            United  States v. Neal, 36  F.3d 1190, 1207  (1st Cir. 1994).            ______________    ____            Arguing that a witness  is speaking the truth because  he has            reason to do  so is  not "making personal  assurances."   See                                                                      ___                                         -8-                                          8            United States v. Dockray,  943 F.2d 152, 156 (1st  Cir. 1991)            _____________    _______            (informing the  jury of the effect  of a plea  agreement on a            witness'  incentives to  testify  truthfully is  not improper            vouching).                      As   well,  the   prosecution's  argument   was  an            appropriate  response  to  Cruz-Kuilan's own  arguments  that            Marrero and Pizzini were less worthy of belief as a result of            their plea bargains.  See United States  v. Mejia-Lozano, 829                                  ___ _____________     ____________            F.2d 268, 274 (1st Cir. 1987) (prosecution has greater leeway            in responding  to attack on, and  attempting to rehabilitate,            its witnesses).            IV.  New Trial Motion            _____________________                      Cruz-Kuilan's final effort is to claim error in the            denial of  his request  for a  new trial.   That  request was            based in  turn on a claim that  the prosecution had failed to            provide the defense with information about certain "prior bad            acts" committed by Pizzini.  Cruz-Kuilan asserts that shortly            before trial  in this  case, the Commonwealth's  courts found            probable cause for murder, weapons possession, and possession            of  a  stolen  vehicle  against  Pizzini.2    We  review  the                                            ____________________            2.  Defense counsel has represented  to us that Pizzini later            pleaded guilty in the  Commonwealth's courts to second degree            murder,  to violating the weapons laws and to having a stolen            vehicle.  But that plea was not entered until close to a year            after  the federal trial here.   Furthermore, this  was not a            case where defendant claimed that Pizzini,  not he, fired the            weapon.  Such a claim would  be of no moment given the aiding            and abetting charge  and that the substantive charge  was not            murder, but carjacking.   In any event, Cruz-Kuilan's defense                                         -9-                                          9            district court's determination  for an  abuse of  discretion.            See United States  v. Pettiford,  962 F.2d 74,  77 (1st  Cir.            ___ _____________     _________            1992).                      Pizzini   was  hardly  of  sterling  character  and            admitted  to  a  prior  robbery conviction  and  three  prior            robbery  charges.     Indeed,  the  prosecution   itself  had            described Pizzini  as a  frequent participant  in carjackings            and  a convicted robber.   Pizzini's  testimony was  that he,            Marrero, and  Cruz-Kuilan planned  to steal  a  car, that  he            drove  everyone  to Levittown  where they  spotted a  car and            followed  it and that  he dropped Marrero  and Cruz-Kuilan at            the carport and  left.  He did not see Mr. Fuhs being held at            gun point or being shot.                      We assume arguendo, as did the district court, that            the  prosecution knew or should have  known of the additional            asserted  "prior  bad  acts"  evidence, without  in  any  way            impugning the government here.  The question for the district            court  as to the new  evidence is whether  "it is 'material,'            [and]  it  is  'material'  only  if there  is  'a  reasonable            probability' that the evidence would have changed the result,            and a  'reasonable probability' is 'a  probability sufficient            to undermine  confidence in the outcome.'"   United States v.                                                         _____________            Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993) (quoting United            _________                                              ______            States v.  Bagley, 473 U.S.  667, 682 (1985)),  cert. denied,            ______     ______                               _____ ______                                            ____________________            was that he was not there at all.                                               -10-                                          10            114 S. Ct. 2714 (1994).  Given Pizzini's admittedly extensive            criminal  past, it  was not  an abuse  of discretion  for the            district court  to find  that the  lack of  additional cross-            examination  on  the  same   well  developed  theme  did  not            undermine  confidence in  the  jury verdict  of  guilt.   Cf.                                                                      ___            Sepulveda,  15 F.3d at 1219 (no abuse of discretion in denial            _________            of new trial request where the newly disclosed information at            issue would  have  at most  impeached  further a  witness  of            already "dubious"  credibility).  In  light of all  the other            evidence, it is highly improbable that the "newly discovered"            evidence would have  mattered a whit.  There was  no abuse of            discretion by the district court.                       Affirmed.                          _________                                         -11-                                          11
