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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1990 <br> <br>                          UNITED STATES, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                     ABRAHAM SERRANO-OSORIO, <br>           a/k/a CASQUERO, a/k/a ABRAHAM COLON-OSORIO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Lynch, Noonan and Lipez, <br> <br>                          Circuit Judges. <br> <br>                      _____________________ <br> <br>    Ignacio Fernndez-de Lahongrais, by appointment of the Court,  <br>for appellant. <br>    Camille Vlez-Riv, Assistant United States Attorney, with <br>whom Guillermo Gil, United States Attorney, and Jorge E. Vega- <br>Pacheco, Assistant United States Attorney, Chief, Criminal <br>Division, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        August 30, 1999 <br>                      ____________________

         NOONAN, Circuit Judge.  Abraham Serrano-Osorio (Serrano) <br>appeals his conviction for carjacking in violation of 18 U.S.C. <br> 2119(2) & (3) and his life sentence for murder in connection <br>therewith, together with his conviction of using a firearm in the <br>carjacking in violation of 18 U.S.C.  924(c)(1)(3).  We affirm the <br>judgment of the district court. <br>                              FACTS <br>         At trial, the government's principal witness, Wilfredo <br>Cabrera-Batista (Cabrera) testified that on January 19, 1993 he was <br>a security guard for St. James Company standing in the town square <br>of Ro Grande, Puerto Rico at about 6:30 in the evening.  An <br>acquaintance, Rubn Rivera-Trujillo (Rivera), drove by in a <br>champagne-colored Mitsubishi Montero.  Cabrera asked Rivera for a <br>ride.  After driving a block they passed Serrano on a street <br>corner.  Serrano had known Cabrera for nine years and asked Cabrera <br>if he too could have a ride.  Cabrera, in turn, asked Rivera to <br>oblige Serrano because Serrano was going to the same area where <br>Cabrera lived.  Rivera agreed.  Cabrera got in the back seat and <br>Serrano the front passenger seat. <br>         Immediately after getting in, Serrano pulled something <br>from his waist that Cabrera could not see and told Rivera to take <br>him to a different area, "La Pescadera" in Loza.  Rivera <br>complied.  When they reached La Pescadera Serrano told Rivera to <br>stop the car and ordered both Rivera and Cabrera to get out.  When <br>he got out, Cabrera saw that Serrano had a revolver in his hand.  <br>Serrano grabbed Rivera by the neck and put the gun to his head.  <br>They both fell to the ground.  Cabrera asked Serrano if he needed <br>money and threw $180 on the ground near him.  He heard two shots <br>and saw Serrano pointing the gun at Rivera's head.  He then ran and <br>was himself shot in the buttocks and in the back.  Serrano, <br>however, did not pursue him.  Cabrera escaped into a pasture and <br>from a hill saw Serrano drive off in the Mitsubishi Montero.  The <br>medical examiner testified that Rivera died by gunshot to his head.  <br>Another witness testified that later in the evening Serrano arrived <br>at a grocery store in a champagne-colored Mitsubishi Montero and <br>that he carried a gun in the right-hand pocket of his jeans. <br>         The government also presented evidence that the FBI took <br>Cabrera's statement on February 25, 1994 as to what had happened <br>and that Cabrera had identified Serrano as the carjacker and killer <br>of Rivera.  The FBI searched for Serrano in Puerto Rico and was <br>unable to find him although he continued to have property in Puerto <br>Rico.  A fugitive investigation ensued.  On June 29, 1995 the FBI <br>arrested Serrano in the Dominican Republic. <br>         The defense introduced a single witness, a notary public <br>and attorney, Noem Caraballo-Lpez (Caraballo), who had been a <br>lawyer for 11 years.  She testified that on May 31, 1997 Cabrera <br>had come to her office and stated that he wanted to make a sworn <br>statement.  She took notes of what he wanted to say and gave them <br>to her secretary who typed them out.  After the statement was typed <br>she read it to Cabrera, who signed it.  The document ended with two <br>declarations:  "I sign this statement without having been <br>intimidated fully and voluntarily and without any coercion <br>whatsoever."  And:  "What I have stated is the truth and nothing <br>but the truth, in witness whereof I sign this statement in Ro <br>Grande, Puerto Rico on May 31, 1997." <br>         In this sworn statement Cabrera declared that an argument <br>had arisen between Rivera and Serrano; that Rivera got out of the <br>car and started looking under the seat and took out a firearm; that <br>then Serrano got out and began to struggle with Rivera on account <br>of the gun; and that eventually Serrano succeeded in taking the gun <br>from Rivera and shot him.  At the trial Cabrera stated that he <br>supplied this statement because he was paid $140 by the brother of <br>Serrano who asked him to help get his brother out of the carjacking <br>charge and told Cabrera that he would give him $5,000 more if his <br>brother did get out of the charge.  He further stated that he was <br>intimidated by the brother and two other men and that the notary <br>public had been chosen by Serrano's wife. <br>                           PROCEEDINGS <br>         On July 5, 1995, Serrano was indicted.  A jury trial <br>began on February 17, 1998.  At the conclusion of the evidence <br>Serrano moved under Federal Rule of Criminal Procedure 29 for a <br>judgment of acquittal, which the court denied. <br>         Serrano did not object to the evidence offered as to the <br>FBI search for him in Puerto Rico and its subsequent fugitive <br>investigation.  He did argue that the court should not instruct the <br>jury as to flight.  The court, however, instructed the jury that it <br>could consider intentional flight by the defendant, noting that in <br>its consideration of the evidence of flight the jury should <br>consider that "there may be reasons for the defendant's actions <br>that are fully consistent with innocence."  The court also reminded <br>the jury that the government had the burden of proof as to whether <br>the defendant had engaged in intentional flight.  Serrano made no <br>objection to the instructions actually given. <br>         The jury convicted Serrano of carjacking and of use of a <br>gun.  At the sentencing hearing Serrano moved for a downward <br>departure pursuant to U.S.S.G.  2A1.1, Application Note 1.  The <br>government replied that Serrano was guilty of felony murder.  The <br>court heard an allocution from Serrano in which he declared that he <br>was innocent of intentionally killing Rivera.  The court held that <br>Rivera had been killed under circumstances that would constitute <br>murder under 18 U.S.C.  1111 and that therefore U.S.S.G.  2B3.1 <br>& 2A1.1 set a base offense level of 43, requiring Serrano be <br>sentenced to life imprisonment. <br>         Serrano appeals. <br>                             ANALYSIS <br>         The Evidence of Guilt.  Serrano contends that the <br>government's case depends on the testimony of Cabrera and that that <br>testimony was perjured.  This contention is based solely on the <br>inconsistency between Cabrera's sworn statement before the notary <br>and his testimony at trial.  No doubt the statement before the <br>notary shows the events in a different light from Cabrera's trial <br>testimony, but it was the province of the jury to decide if and <br>when he was telling the truth.  He explained why his statement to <br>the notary was not true.  That a  man can lie on one occasion does <br>not establish that he is a perjurer in court.  We will not second <br>guess the jury's belief that he told the truth to it.  See United <br>States v. Carroll, 105 F.3d 740, 742 (1st Cir.), cert. denied, 520 <br>U.S. 1258 (1997). <br>         The Flight Instruction.  It was doubtful that Serrano <br>effectively objected to the court instructing the jury on flight.  <br>Assuming, however, without deciding that there is an objection, the <br>court did not err in what it did tell the jury it might consider if <br>the government had convinced the jurors that Serrano had fled the <br>jurisdiction.  See United States v. Hernndez-Bermdez, 857 F.2d <br>50, 52 (1st Cir. 1983). <br>         The Constitutionality of the Carjacking Statute.  Serrano <br>argues that 18 U.S.C.  2119 is not within the commerce powers of <br>the Congress.  We have rejected this contention.  See United States <br>v. Rivera-Figueroa, 149 F.3d 1, 3-4 (1st Cir.), cert. denied sub <br>nom. Rodrguez-Rodrguez v. United States, ___ U.S. ___, 119 S. Ct. <br>251 (1998). <br>         The Sentence.  The district court did not err in ruling <br>that Serrano had committed felony murder.  18 U.S.C.  1111.  The <br>district court's refusal to depart downward under Application Note <br>1 to U.S.S.G.  2A1.1 is not reviewable. <br>         AFFIRMED. <br></pre>

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