
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1267                                    UNITED STATES,                                      Appellee,                                          v.                               REYNALDO VAZQUEZ-RIVERA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                _____________________               Edgardo  Rodr guez-Quilichini,   Assistant  Federal   Public               _____________________________          Defender, with whom Joseph C. Laws, Jr., Federal Public Defender,                              ___________________          was on brief for appellant.               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with               ________________________          whom Guillermo  Gil, United  States Attorney,  and Nelson  P rez-               ______________                                ______________          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for          ____          appellee.                                 ____________________                                   February 2, 1998                                 ____________________                    TORRUELLA, Chief Judge.  This case is before us for the                    TORRUELLA, Chief Judge.                               ___________          second time.   See United  States v. V zquez-Rivera, 83  F.3d 542                         ___ ______________    ______________          (1st Cir.  1996).  In  the first appeal, we  affirmed Appellant's          conviction for carjacking  in violation of 18 U.S.C.    2119, but          concluded that the sentence was flawed because the factual record          had not  been sufficiently  developed to  support the  sentencing          enhancement  imposed.   We thus  remanded the  case to  allow the          district court  to reconsider  sentencing options.   Id.  at 543.                                                               ___          The  version of the carjacking  statute in force  at the time the          crime occurred, June 24, 1994, provided for an enhancement of the          imprisonment option available to the sentencing judge of up to 10          additional  years --  to a  maximum of  25  years --  if "serious          bodily injury"  resulted from  the commission of  the crime.   18          U.S.C.   2119(2).1  That provision refers to 18 U.S.C.   1365 for          the  definition of what constitutes "serious bodily injury" under          the  carjacking statute.  Section 1365(g)(3), which codifies part                                        ____________________          1  Before its amendment in  1996, section 2119 read, in pertinent          part:                    Whoever, possessing  a firearm as  defined in                    Section  921 of  this  Title,  takes a  motor                    vehicle that  has been  transported, shipped,                    or received  in interstate 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 (as defined                      in section 1365  of this title)  results,                      be fined  under this title  or imprisoned                      not more than 25 years, or both . . . .                                         -2-          of the  Federal Anti-Tampering Act, Pub.  L. No. 98-127,    2, 97          Stat. 831 (1983), provides that:                    [T]he term  "serious bodily injury" means  injury which                    involves -                    (A)  a substantial risk of death;                    (B)  extreme physical pain;                    (C)  protracted and obvious disfigurement; or                    (D)  protracted loss or impairment of the function of a                         bodily member, organ, or mental faculty . . . .                    The district court  concluded, and we  agreed, V zquez-                                                                   ________          Rivera, 83 F.3d  at 546-47, that the prosecution  proved that the          ______          carjacking victim was raped by Appellant during the commission of          the charged offense.   The trial court went on  to rule, however,          that the 10 year imprisonment enhancement was warranted, based on          a determination that the rape caused the victim "extreme physical          pain."   Although we  concurred with  the district  court's views          that this  crime was "degrading, heinous, cruel, and brutal," id.                                                                        ___          at 547, we reluctantly vacated  the sentence because we found the          record devoid  of any  evidence that would  support the  district          court's  finding of  "extreme physical  pain," as  that term  was          defined in the  aforementioned legislation.   The record did  not          contain any  description of the  assault other than that  it took          place while the  victim was in a debasing  physical position, and          that  the  rape lasted  approximately  five minutes.    A medical          account  introduced as part  of the presentence  report reflected          that  her physical  condition  only  two  hours  after  the  rape          presented no  signs of any cuts  or bruises in her  vaginal area.          It   was   otherwise   silent   regarding  any   other   physical          manifestations of this crime.                                         -3-                    On  this first  appeal the  Government  made a  belated          attempt  to salvage  the sentencing  enhancement  by arguing  the          fourth prong of Section 1365(g)(3), to the effect that the victim          had also suffered extreme mental trauma.  Unfortunately, with the          meagerness of the  record before us, we  were unable to meet  the          statutory  standard  which  required  that  "protracted  loss  or          impairment of  the function  of a  . .  . mental faculty"  exist.          This  language, we  ruled, mandated  "evidence  of the  specific,          objective types of harm set out in  the statute," id. at 548 n.9,                                                            ___          the phraseology  of which was  designed by Congress to  deal with                                                     ________          the tampering of consumer goods, not rape.  Id.              ___________________________             ___                    The  only  evidence  available  to  us   regarding  the          victim's  mental  condition  was  contained  in  the  presentence          report,  which  indicated   that  the  victim  had   received  no          professional  counseling or  assistance, but  had  relied on  the          support of her family  and boyfriend.  It also had  her statement          to  the probation  officer  that the  ordeal  "had a  devastating          effect on  her life, family, and consensual  relationship."  Id.,                                                                       ___          at 548.  Although we recognized that "even a rape that  causes no          physical pain is a unique and reprehensible physical  and psychic          invasion," id., the  statute in question,  by its terms,  limited                     ___          our hand  to specific types  of injury.   This prevented  us from          concluding  "that any rape, regardless of the circumstances, [was          the]  equivalent  [of]  the[] specified  harms"  necessary  for a          triggering  of the enhancement.   The interpretation  proposed by          the  government,  we  believed,  "would  broaden  measurably  the                                         -4-          limited  category  of  injuries  that  Congress    designated  as                                                 ________          justifying a substantial increase  in punishment for carjacking."          Id.  (emphasis supplied).   Without further indication  from that          ___          body, we felt  unauthorized to take the expanded  view of Section          1365  proposed by  the  Government and  adopted  by the  district          court.  Thus we remanded to allow the Government to "provide some          evidentiary basis upon  which the court may conclude  that one or          more of the statutory conditions of harm occurred."  Id.                                                               ___                    After remand,  but before resentencing of  appellant by          the district court, Congress's  attention was momentarily focused          on this court's decision.  See H.R. Rep. No. 104-787, at 2-3, 142                                     ___          Cong. Rec.  3409, 3410-11 (1996).  This scrutiny resulted in the           enactment of  the so-called  Carjacking Correction  Act of  1996,          Pub.   L. No. 104-217, 110 Stat.  3020, which became effective on          October 1, 1996, the  intended purpose  of which  was to  rectify          this court's interpretation  of the term "serious  bodily injury"          as defined in Section  1365 of Title 18.   See 142 Cong.  Rec. at                                                     ___          3410-11;  Statement on signing  the Carjacking Correction  Act of          1996 (Pres. Bill Clinton), 1996 WL 13336081 (October 1, 1996).                    Pursuant  to this new statute, Section 2119(2) of Title          18  was  amended to  redefine  the term  "serious  bodily injury"          contained in  Section 1365 of  that Title to include  any conduct          constituting "sexual  abuse," as that term is defined in Sections          2241 and 2242 of Title 18.2   The application of this legislation                                        ____________________          2  Section 2 of Pub. L. No. 104-217 provides:                                         -5-          to appellant is one of the issues we must decide in  the present,          and latest, review of his sentence.                                  The Present Appeal                                  The Present Appeal                                  __________________                    The  case was called  for re-sentencing on  January 17,          1997.  Prior thereto the government filed a motion announcing its          intention  to  seek an  enhanced sentence  pursuant to  18 U.S.C.            2119(2),  by introducing evidence during the sentencing hearing          that  the victim suffered "serious bodily injury," arguing, inter                                                                      _____          alia,  that  the  amendment  to  that  section  contained  in the          ____          Carjacking  Correction  Act  of 1996,  supra,  was  applicable to                                                 _____          appellant upon resentencing.  Appellant  opposed the government's          proposal,  countering that the  application of that  provision to          him  for the  crime for  which he  had previously  been convicted          violated   the  Ex-Post   Facto  Clause  of   the  Constitution.3          Appellant  further  contended  that any  "serious  bodily injury"          suffered by his victim resulted from the rape itself and not from                                        ____________________                    Section 2119(2)  of title  18, United  States                    Code, is amended by inserting, "including any                    conduct that, if the  conduct occurred in the                    special maritime and territorial jurisdiction                    of the  United States, would  violate section                    2241 or 2242  of this title"  after "(defined                    as in section 1365 of this title."              18 U.S.C.    2241 and 2242 establish the crimes of aggravated          sexual abuse  (by the use of  force or threats  of death, serious          bodily  injury, or  kidnapping)  and sexual  abuse, respectively,          within the special  maritime and territorial jurisdiction  of the          United States.          3  U.S. Const. art. I,   9, cl. 3:                    No . . . ex post facto Law shall be passed.                                         -6-          the carjacking, and therefore that such injury could not serve as          the basis for enhancing his sentence under thecarjacking statute.                    At the outset  of the sentencing hearing,  the district          judge made reference to our  opinion, supra, at 544, stating that                                                _____          the  purpose  of  the proceeding  was  "to  reconsider sentencing                                                      __________          options" (emphasis  supplied) in  view of the  fact that  a prior          panel of this court had  concluded "that the factual record ha[d]          not  been   sufficiently  developed   to  support  the   sentence          enhancement."  Id.   The district court then ruled  that the 1996                         ___          amendment to the carjacking statute was a "mere clarification" of          the  original legislation, and thus was applicable to appellant's          remanded sentencing.   The court stated, in the alternative, that          it  "presume[d]  that  the  government  would  present sufficient          factual instances now so that the Court can support its finding .          . . even  under the law  as it was  before the clarification  . .          . ."  Finally, the court held that appellant's action of "taking"          the vehicle in  question, an element of the  carjacking crime for          which he was convicted, 18  U.S.C.   2119(2), was not consummated          until after  he drove  away, having abandoned  the victim  of the          rape on  a lonely  beach.  Thus,  the court  rejected appellant's          contention that any  serious bodily injury suffered from the rape          was not the result of the carjacking itself.                    The government proceeded to present evidence  regarding          the victim's injuries.  This consisted of the testimony of former          Assistant  U.S.  Attorney  Sylvia  Carre o-Coll and  of  Mercedes          Rodr guez-L pez,   a  social  psychologist.     A   letter  dated                                         -7-          September 30, 1995, from the victim  to the sentencing judge, was          also made part of the sentencing record.                    Carre o-Coll  testified  that  as  the  Assistant  U.S.          Attorney in charge of prosecuting this case she visited the scene          of  the rape  prior  to  the trial,  accompanied  by the  victim.          During the course of  this viewing and the  related conversations          with the victim, the  victim told her "how helpless she felt, how          threatened, the  terror that she  felt that night," that  as they          approached the scene of the crime the victim became "increasingly          nervous  and visibly  upset," and  "became  dizzy .  . .  started          crying and basically  . .  . had to  be carried  back to the  car          because she couldn't stand."   On the return trip to  San Juan --          the rape  took place in a remote beach  about 40 miles distant --          "she cried all the  way back . . .[,] was extremely quiet and . .          . had to  [be] take[n] .  . . to  her house."   Carre o-Coll also          testified  that during other pretrial interviews with the victim,          when they "got to the  part of the rape, .  . . she would  become          very upset, very nervous."  At the district court's prompting she          also testified that the victim told her "that  she feared for her          life throughout the ordeal," "felt deeply humiliated," "felt pain          . . . and  deeply violated while the rape was  taking place," and          "felt dirty and in pain throughout the event."                    Mercedes  Rodr guez-L pez  testified  that  she  was  a          licensed  social  psychologist  with  experience  in  the  health          environment of victims  who survived crime, particularly  victims          of violence  or rape.   She was a  counselor and director  of the                                         -8-          Rape Victims Health Center and  stated that she had approximately          twenty years of experience dealing with rape victims.  Rodr guez-          L pez indicated that  she held two  personal interviews with  the          victim, the second one a week before the hearing, as well  as six          or seven telephone conversations, for  a total of about twelve to          fifteen hours of interviews.  In addition the victim filled out a          questionnaire  forwarded to  her by Rodr guez-L pez  dealing with          the  subject of  the sentencing  hearing.   Rodr guez-L pez  also          filed  a written  report which was  generally repetitious  of her          testimony.                    Rodr guez-L pez indicated that the victim "has not been          able to  survive the effects  of this rape[;] she  is confronting          some acute reactions which . . . are chronic due to the prolonged          period she has  been through them and  the least I can  say about          the process that [the victim] has gone [through] is these are the          most devastating ones that I have ever seen about someone who has          gone  through a  rape  process."   Rodr guez  testified that  the          victim  suffered  non-resolved  rape  trauma  and  post-traumatic          stress syndrome, which  manifested itself as "fear,  the sense of          distrust, physical discomfort, loss of energy, a loss of faith in          life and the  sensation that would it [sic] have  been better off          to  die than continue living are  [sic] three years now after the          rape as  if the   rape  were virtual  in this moment  now."   She          concluded  her  testimony  by  saying  that  she  "had  no  doubt          whatsoever that the  [victim's] physical pain was extreme  at the          time [of the rape], days after this  rape and even now on a daily                                         -9-          basis  that pain  is rekindled  and in  the emotional  and mental          level  I have  no  doubt  whatsoever that  we  are facing  severe          damage,  extreme, critical of the  emotional  condition and which          effect [sic] her function, individual, social, family level."                    Rodr guez-L pez's report dated December 12, 1996, which          is also part of the record,  substantially supports her testimony          at  the hearing.   It  also documents  that the  victim  has been          unable  to  finish  her  college  education,  of  which  she  has          completed  two and  one  half  years,  because of  the  emotional          condition  that  she  was  suffering "as  a  consequence  of  the          robbery, kidnapping and rape she suffered in 1994."                    The  government also introduced  into evidence a letter          dated September  30, 1995,  directed by the  victim to  the trial          judge, which the  judge indicated was  read by him  prior to  the          original sentencing but  not placed  into the  record because  he          felt that the presence of the press at that hearing would further          stigmatize the  victim.  In  her letter the victim  indicates how          the violation  "was only the  beginning of a long  nightmare [in]          which  she do[es] not  even dare go  to the corner  of the street          without  having someone  accompanying"  her.   She is  "afraid of          anyone who stands near" her, and her "distrust in everything that          surrounds [her] controls [her] life."                    At the  conclusion of  the hearing  the district  judge          reiterated his ruling that  the 1996 amendment was  applicable to          appellant, and concluded that "the factual record is replete with          evidence  to  support the  finding  that  the victim  did  suffer                                         -10-          extreme physical pain and that  she is presently suffering from .          . . post  traumatic stress syndrome [or rape  trauma syndrome and          because  of]  the presence  of  the disorder  .  . .,  her mental          faculties have been affected in [sic] a large extent."                               The Ex Post Facto Issue                               The Ex Post Facto Issue                               _______________________                    It   is  an  elementary   principle  of  our   form  of          government, one ingrained  in the history of our  Nation, that ex          post facto  criminal  laws are  not to  be tolerated.   Thus  the          Constitution prohibits the retrospective  application of criminal          laws to the  prejudice of a defendant.  U.S. Const. art. I,    9,          cl. 3.   In order to trigger this provision, (1)  the law must be          criminal in  nature,  Collins  v. Youngblood,  497  U.S.  37,  41                                _______     __________          (1990);  (2)  it  must  be  applied  retrospectively,  Miller  v.                                                                 ______          Florida,  482 U.S.  423, 430 (1987),  that is,  it must  apply to          _______          events occurring before  its enactment, Lynce  v. Mathis, 117  S.                                                  _____     ______          Ct. 891, 895  (1997); and  (3) the  application of  the law  must          disadvantage the offender  affected by it, Weaver  v. Graham, 450                                                     ______     ______          U.S.  24, 29  (1981),  by  altering  the definition  of  criminal          conduct or increasing the punishment for the crime, Lynce, 117 S.                                                              _____          Ct. at 895.                    Measured against these criteria, there should be little          doubt  that the application  of the provisions  of the Carjacking          Correction  Act to  appellant  for  the crime  for  which he  was          convicted violates the ex post facto  clause of the Constitution.          There is no  question about the criminal nature  of this statute;          it  was enacted  in 1996 to  be applied  to a crime  committed in                                         -11-          1994, thus its  retroactive enforcement is patent;  and it allows          appellant  to be punished more stringently  than was permitted by          this court's decision prior to the passage of the enactment.                    Painting  black  lines  on  the sides  of  a  horse and          calling it a zebra does not make it one.  Similarly, labeling the          1996  amendment a  "clarification" of  Congress's  intent in  the          original law is legally  irrelevant.  In the first appeal of this          case, this  court decided what  Congress's intention was  when it          enacted the original statute.  V zquez-Rivera, supra, 83 F.3d. at                                         ______________  _____          548.   "Having  achieved  finality,  . .  .  a judicial  decision          becomes the last word of the judicial department with regard to a          particular  case or controversy, and  Congress may not declare by          retroactive legislation that the law applicable to that very case          was something other  than what the courts said it was."  Plaut v.                                                                   _____          Spendthrift Farms,  Inc., 514 U.S.  211, 227 (1995).   Thus, post          ________________________          hoc statements regarding  the original legislative intent  do not          affect this court's previous, and  final, finding as to what that          intent was.  Furthermore, as can be seen by the changes reflected          in the new  statute, in which the critical  term, "serious bodily          injury"  is  redefined  from  within  the  context  of a  statute          designed  to  prevent  tampering  with  consumer  goods,  to  one          concerned   with   sexual   abuse,  it   is   obvious   that  the          "clarification" is more than merely cosmetic.                    We are therefore  required to consider the  new factual          record in  the light  of our interpretation  of Section  2119(2),          before it was amended in 1996.          ______                                         -12-                                The new factual record                                The new factual record                                ______________________                    The new  record is devoid  of any  valid evidence  that          will support a finding of extreme physical pain, as that term was                                            ________          interpreted by us in the first appeal.  V zquez-Rivera, supra, at                                                  ______________  _____          547.  We are thus unable to approve the district court's findings          in this respect.                    There is, nevertheless,  sufficient evidence to support          the conclusion that the victim  has suffered a "protracted . .  .          impairment  of   .  .  .   mental    facult[ies]."     18  U.S.C.            1365(g)(3)(D).   Without unduly  repeating what  has previously          been   stated  in  this  opinion,  ante   at  4-5,  the  evidence                                             ____          establishes that as a direct  consequence of the rape, the victim          is very much emotionally disturbed, and suffers  a chronic mental          condition,  which persists even though several years have elapsed          since  her  grievous  incident.    She is  afraid  to  be  around          strangers or  to leave  her house unaccompanied,  is morose,  has          crying spells, feelings of  physical discomfort, despondency, and          fear,  and has a loss of physical  energy.  Her malady, diagnosed          as rape  trauma or post-traumatic  stress disorder, has  not only          prevented her  from leading a  normal life, it has  truncated the          completion of the remaining one and one-half years of her college          education  because she  is  unable  to  concentrate  in  academic          endeavors, cannot  engage in social discourse and is not tolerant          of the company of others.   We believe this evidence sufficiently          fills the lacuna left open  in the government's first request for          the  enhancement provided  by 18  U.S.C.    2119(2) for  cases in                                         -13-          which a carjacking results in  "serious bodily injury" by leading          to  the "protracted  impairment of  . .  . [the  victim's] mental          facult[ies]."  18 U.S.C.   1365(g)(3)(D).                    One  last  argument  remains  unaddressed,  appellant's          contention  that even  if the  rape  constitutes "serious  bodily          injury," it  did not  result from the  carjacking itself,  and is          therefore outside the coverage of the statute.  By its terms, the          carjacking statute seeks to punish the use of force, violence, or          intimidation to  "take" a  vehicle,  and it  further provides  an          enhancement  of the  punishment when  the taking  of the  vehicle          results in serious bodily injury.  Appellant contends that when a          carjacking victim suffers  an injury unrelated  to the taking  of          the vehicle, the harm, however severe, falls outside the ambit of          the carjacking statute.   He therefore argues that  in this case,          the rape was  not the "result" of  the carjacking because  it was          not intended to assist in the taking of the vehicle.                    Appellant's  argument,  which  we  noted  but  did  not          resolve in the  first appeal, see Rivera-V zquez, 83  F.3d at 548                                        ___ ______________          n.10, raises  the not  insubstantial problem  of delineating  the          precise   temporal   limits   of   the   crime   of   carjacking.          Nevertheless, although we need not provide a comprehensive answer          to this problem, we find appellant's proposed construction of the          carjacking statute to  be unconvincing.  We begin  by noting that          there is no  textual basis for asserting that the  injury must be          "necessary  to" or  "intended to  effectuate"  the taking  of the          vehicle  itself.    To  the  contrary, the  choice  of  the  word                                         -14-          "results" in the statutory phrase "if serious bodily injury . . .          results" suggests that Congress intended to cover a  fairly broad          range  of consequences flowing from  a carjacking.  Moreover, the          legislative history characterized  the provision as imposing  the          enhancement when  the  carjacking "involves  bodily injury,"  see                                             ________                   ___          Anti  Car Theft  Act,  Pub.  L. No.  102-519,  reprinted in  1992                                                         ____________          U.S.C.A.A.N. 2847, at  2865 (emphasis added), which  supports the          view that the injuries covered are not limited to those resulting          from  the "taking" of a vehicle, but also include those caused by          the carjacker  at any point  during his  or her retention  of the          vehicle.  Cf. United States v. Cruz, 106 F.3d 1134, 1137 (3d Cir.                    ___ _____________    ____          1997) (holding that a young woman raped during a carjacking was a          "victim" of the carjacking for  sentencing purposes and that  the          court could  "look at all  the conduct underlying the  offense of          the  conviction").   Furthermore,  this  view  accords  with  our          interpretation of sentencing enhancement  regimes generally.  See                                                                        ___          United States v. Rivera-G mez, 67  F.3d 993, 1001 (1st Cir. 1995)          _____________    ____________          (noting   that  the  sentencing   regime  in  18   U.S.C.    2119          "represents a  congressional  judgment that  the  punishment  for          committing  the crime  of  carjacking should  be  harsher if  the          crime,  as actually  perpetrated, includes conduct  that produces          the  demise  of  the  victim.").    This interpretation  is  also          consistent with  the tenor  of our  prior  holding regarding  the          admissibility of the evidence of the  rape to prove an element of          the crime,  the use  of a firearm,  which was  first seen  by the                                         -15-          victim when  appellant placed  the weapon  on top of  the car  to          intimidate her immediately prior to raping her.                      We  thus conclude that, under the circumstances of this          case, the carjacking  resulted in serious bodily  injury, namely,          the impairment of  the victim's mental faculties.  Therefore, the          district  court  did not  abuse  its discretion  in  imposing the          sentencing enhancement provided by Section 2119(2).4                    For the reasons stated in this opinion, the decision of          the district court is AFFIRMED.                                AFFIRMED                                        ____________________          4   We also  find that  the rule of  lenity does not  prevent the          application  of  the section  2119(2)  enhancement  to appellant.          "The  rule of lenity  applies only  if, after  seizing everything          from which aid can be derived, [a court] can make no  more than a          guess as to what Congress intended."  Reno v. Koray, 515 U.S. 50,                                                ____    _____          ___, 115  S. Ct. 2021, 2029 (1995).  A  prior panel of this court          has thus noted that, "[p]ut bluntly, the rule of lenity cannot be          used to create ambiguity when the  meaning of a law, even if  not          readily  apparent, is, upon  inquiry, reasonably clear."   United                                                                     ______          States v. Nippon  Paper Ind. Co., Ltd.,  109 F.3d 1, 8  (1st Cir.          ______    ____________________________          1997).   As  our discussion  above demonstrates,  we do  not find          section 2119(2) to be ambiguous - only somewhat complicated.                                         -16-
