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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1952 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                      DAVID PEREZ-MONTAEZ, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-2210 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                  JOSE RAUL SANTIAGO-RODRIGUEZ, <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. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Lynch, Circuit Judge, <br> <br>                 Campbell, Senior Circuit Judge, <br> <br>                and O'Toole, Jr., District Judge. <br> <br>                      _____________________ <br> <br> <br>                                 

    Jorge L. Arroyo-Alejandro, by appointment of the Court, for <br>appellant David Prez-Montaez and Rachel Brill, by appointment of <br>the Court, for appellant Jos Ral Santiago, were on consolidated <br>brief. <br>    Mark Irish, Assistant United States Attorney, with whom <br>Guillermo Gil, United State Attorney, Jorge E. Vega-Pacheco, Chief, <br>Criminal Division, and Camille Vlez-Riv, Assistant United States <br>Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                         February 2, 2000 <br>                       ____________________

         O'TOOLE, District Judge.  David Prez-Montaez (Prez) <br>and Jos Ral Santiago-Rodrguez (Santiago) were indicted for the <br>federal crimes of carjacking, 18 U.S.C.  2119, and carrying or <br>using a firearm during and in relation to a crime of violence, 18 <br>U.S.C.  924(c)(1)(A).  They were convicted on both counts and <br>received life sentences for the carjacking offense.  They filed <br>timely notices of appeal.  We have jurisdiction under 28 U.S.C. <br> 1291. <br>         For the following reasons, we AFFIRM the convictions. <br>                          I.  Background <br>         On February 8, 1996, David Vzquez-Rivera (Vzquez) was <br>found dead at his job site, face down with a bullet wound in his <br>back.  He had been doing construction work alone at a house in <br>Caguas, Puerto Rico; his car, a brown Toyota station wagon, was <br>missing.  Police received tips that the defendants and a third man, <br>Carmelo Serrano-Bentez (Serrano), had formed a plan to steal <br>Vzquez's car from him and use it for parts to repair a similar <br>Toyota station wagon owned by Santiago.   <br>         Pursuing their investigation, the police went to <br>Santiago's house.  There was a white Toyota station wagon parked in <br>the yard next to the residence.  One of the officers, Ulysses <br>Batalla Ramos (Batalla), later testified that, having obtained <br>Santiago's consent, the police searched in and around the <br>automobile and a shed located nearby on Santiago's property.  They <br>found a number of automobile parts.  Also with Santiago's consent, <br>they took away the white Toyota station wagon and many of the auto <br>parts they had found.  Some of the parts were eventually traced to <br>Vzquez's car. <br>         Prez, Santiago, and Serrano all were indicted and all <br>initially pled not guilty.  Serrano later changed his plea, <br>however, and he testified as a government witness against Prez and <br>Santiago at trial.  In his testimony, Serrano said that, pursuant <br>to an agreement with the other men, he drove Prez and Santiago to <br>the construction site where Vzquez was working, leaving them there <br>to rob Vzquez of his Toyota, and then proceeded to another part of <br>Caguas to await their return.  Serrano testified that Prez and <br>Santiago did indeed return with Vzquez's car and told him that the <br>robbery had gone badly and that they had killed Vzquez.  Serrano <br>was cross-examined at length regarding the plea bargain he had <br>struck with the government that made him a cooperating witness and <br>also regarding the conflicting versions of events that he had told <br>at different times. <br>         The government sought to introduce many of the auto parts <br>seized from Santiago's residence, but the district court refused to <br>admit several of those parts in evidence because the government <br>could not establish the necessary foundation.  The parts that were <br>admitted, however, included a bumper that had been installed on <br>Santiago's Toyota.  Vzquez's mother identified the bumper at trial <br>as one that had come from her son's car.  She was able to recognize <br>it because of a distinctive mark that had been left by a barbed <br>wire fence that she had once driven into.  She also recognized her <br>son's tool kit among the effects seized from Santiago's property. <br>         After brief deliberations, the jury found Prez and <br>Santiago guilty of both carjacking and the use of a firearm in <br>relation to a crime of violence.  On the carjacking convictions, <br>both defendants were sentenced to life imprisonment, pursuant to <br>subsection (3) of 18 U.S.C.  2119. <br>                     II.  Search and Seizure <br>         Santiago appeals the district court's denial of his <br>motion to suppress the evidence obtained from the search of his <br>property.  The district court found that the discovery of the <br>white Toyota station wagon occurred because it was in plain view <br>and that the subsequent seizure of auto parts from Santiago's <br>property had been made with his "total, absolute and complete <br>consent."  Santiago challenges the latter part of the court's <br>finding, arguing that no valid consent was given, and even if it <br>was, the officers seized evidence which exceeded the scope of the <br>consent.  We  will not disturb the district court's factual <br>findings unless clearly erroneous and will uphold the court's <br>denial of the motion to suppress if  "any reasonable view of the <br>evidence supports it."  United States v. Lanni, 951 F.2d 440, 441 <br>(1st Cir. 1991); see also United States v. Stanley, 915 F.2d 54, 57 <br>(1st Cir. 1990). <br>         Valid consent renders a warrantless search <br>constitutionally permissible, and while consent must be voluntary <br>to be valid, there is no requirement that the person who gave <br>consent must have been explicitly advised of the right to withhold <br>it.  See Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973) <br>(upholding refusal to suppress fruits of car search despite fact <br>that consent was obtained without informing car owner of right to <br>refuse search).  It is the prosecution's burden to establish, by a <br>preponderance of the evidence, that consent was "freely and <br>voluntarily given;" there must be more than mere acquiescence in <br>the face of an unfounded claim of present lawful authority.  <br>Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (suppressing <br>fruits of search where consent was  founded on police officer's <br>false assertion that he had a search warrant).  The district <br>court's conclusion as to whether consent was freely given must take <br>into account the totality of circumstances surrounding the <br>interaction between the defendant and the authorities.  See United <br>States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993). <br>         We find no error in the district court's conclusion that <br>Santiago consented to the seizure.  Batalla testified that Santiago <br>was not threatened, intimidated or coerced, but rather that he <br>invited the officers onto the property, permitted them to look <br>around, and agreed to let them take away the white station wagon <br>and the auto parts.  The testimony was not inherently unbelievable, <br>and, in the absence of a reason not to do so, we defer to the <br>district court's first-hand evaluation of Batalla's credibility as <br>a witness.  The defendants try to make something of Batalla's <br>testimony that he would have "obtain[ed] other means" to seize the <br>evidence if Santiago had not consented.  Batalla also testified <br>that he never communicated such sentiments to Santiago, but even if <br>he had, an officer's statement that he will "obtain other means" to <br>seize evidence is not the same as saying that he is presently <br>entitled, without the "other means," to the evidence.  It is, <br>therefore, not the sort of pretense to present lawful authority <br>that Bumper forbids as a foundation for consent.  Nor is there <br>anything false or unduly coercive about a statement of an intention <br>to seek other means to obtain access to property.  Indeed, as <br>Batalla explained, the "other means" he had in mind would have been <br>a search warrant, which on any fair view of the evidence would have <br>been amply supported by probable cause. <br>         Nor did the district court err in concluding that <br>Santiago gave voluntary consent to the seizure of all the auto <br>parts taken by the officers.  Although the form Santiago signed <br>stated that the police could take a "part," singular, not "parts," <br>plural, Batalla testified that Santiago orally agreed to the <br>seizure of all the parts and even went so far as to help the <br>officers load the parts into a police car.  Again, it is not enough <br>to overturn the district court's findings simply to argue that <br>different findings might have been made.  On the totality of <br>circumstances described in the evidence, the district court could <br>reasonably have concluded that Santiago voluntarily consented to <br>the seizure of all the parts taken. <br>         For these reasons, there was no error in the denial of <br>the motion to suppress the fruits of the search of Santiago's <br>property. <br>                    III.  Evidentiary Rulings <br>         Prez and Santiago challenge a variety of evidentiary <br>rulings made by the district court during the course of the trial, <br>arguing that each of the challenged rulings was error in itself and <br>that the cumulative effect of the errors was to deny them a fair <br>trial.  We review the rulings for abuse of discretion before <br>deciding what cumulative effect any errors may have had.  See <br>United States v. Cardales, 168 F.3d 548, 557 (1st Cir. 1999).  We <br>find no abuse of discretion in the several challenged rulings. <br>         The defendants objected to the admission of statements <br>allegedly made by Santiago and recounted at trial by government <br>witnesses.  One witness testified that he heard Santiago make <br>reference to a "hidden car" shortly after the homicide, and Serrano <br>testified that Santiago had encouraged him to stonewall the police, <br>reassuring him that the government's case was weak and that <br>everything would turn out well.  As against Santiago, neither <br>statement was hearsay, since both were admissions that meet the <br>qualifications of Fed. R. Evid. 801(d)(2)(A).  As against Prez, <br>the statements were admissible as statements of a co-conspirator <br>under Fed. R. Evid. 801(d)(2)(E).  It was not an abuse of <br>discretion to admit the statements; neither carried a risk of <br>unfair prejudice that so substantially outweighed its probative <br>value that its admission would be unreasonable.  Such statements <br>are routinely admitted against criminal defendants.  See United <br>States v. Ros Ruiz, 579 F.2d 670, 676 (1st Cir. 1978). <br>         Serrano was also allowed to testify about threats that he <br>received, which he believed to have originated from Santiago.  The <br>evidence was admitted not to prove the truth of the threats or <br>their origin but to show Serrano's motivation for having changed <br>his version of events, which he did several times before trial.  <br>Indeed, Serrano's credibility was subjected to withering attack <br>during cross-examination because of his inconsistent accounts.  In <br>this circumstance, the district court did not abuse its discretion <br>in allowing the government to put the threats in evidence to try to <br>explain why Serrano may have changed his story.  See United States <br>v. Williams, 993 F.2d 451, 457 (5th Cir. 1993). <br>         Serrano also testified that though he drove Prez and <br>Santiago to the scene of the crime, he did not expect to receive <br>any compensation for his role.  On cross-examination, he admitted <br>that, in fact, he might have expected to receive some compensation.  <br>At this point, defense counsel sought to impeach him using the <br>statement of facts adopted by Serrano as part of his plea bargain, <br>which included the statement that Serrano expected to be paid but <br>never was.  The district court refused to allow the plea statement <br>to be used primarily for two reasons: first, because the issue of <br>Serrano's compensation had "nothing to do with the essential <br>elements of the offense" to which Serrano pled guilty and thus <br>Serrano might have paid inadequate attention to that part of the <br>statement when he adopted it, and second, because Serrano had <br>already admitted in cross-examination that he might have expected <br>to be compensated, thus exposing the very inconsistency that the <br>defense sought to illuminate. <br>         We are not convinced by the first rationale.  The defense <br>proffered, but was not allowed to show, that Serrano had adopted <br>the factual statement in his plea bargain in every respect.  It is <br>speculative to surmise, as the district court apparently did, that <br>Serrano may simply have overlooked the part of the statement of <br>facts in his plea bargain that dealt with compensation.  It would <br>seem that any statement expressly adopted by the witness concerning <br>facts that the witness is presently testifying about, whether or <br>not the statement is part of a plea bargain, would qualify as a <br>prior statement of the witness available as impeachment material <br>under Fed. R. Evid. 613. <br>         Nonetheless, the second rationale provides an adequate <br>basis to exclude the statement.  The purpose of impeachment is to <br>raise questions about the veracity of the witness's testimony, <br>often by pointing out that the witness has given inconsistent <br>versions of the same set of facts.  The very inconsistency that the <br>defendants wished to raise was exposed by the difference between <br>Serrano's direct testimony and his testimony on cross-examination.  <br>It was not an abuse of discretion for the court to conclude that <br>the factual recitation in the plea agreement would add little to <br>what was already before the jury.  Trial judges have wide latitude <br>under the Sixth Amendment to limit repetitive or marginally <br>relevant cross-examination.  See United States v. Anderson, 139 <br>F.3d 291, 302 (1st Cir.), cert. denied sub nom. Coutermarsh v. <br>United States, 119 S. Ct. 158 (1998). <br>         The defendants also contend that the notes of an FBI <br>agent memorializing her interview with Serrano and her <br>understanding of the statements he made during that interview ought <br>to have been admitted.  The trial court concluded, quite correctly, <br>that Serrano never adopted those notes as his own statements and <br>that if they were read to the jury they would constitute <br>inadmissible hearsay. <br>         Finally, the defendants argue that the trial court should <br>not have allowed several auto parts, which were eventually ruled <br>inadmissible for lack of foundation, to be displayed in the <br>courtroom where the jury could see them and to be the subject of <br>some de bene expert testimony.  The district court only allowed the <br>offending parts to remain in the courtroom as identified exhibits <br>during the government's attempt to establish their foundation, and <br>ordered them removed from the courtroom as soon as it was clear <br>that no foundation would be established.  It is difficult to see <br>how a foundation for the admission of physical evidence might have <br>been laid if the witness could not be shown the object.  The <br>district court also carefully instructed the jury to disregard any <br>inference they may have drawn from either the sight of them or the <br>testimony about them.  That was an acceptable way of handling the <br>matter. <br>         In sum, all of the evidentiary rulings discussed above <br>were within the range of appropriate discretion and provide no <br>basis for reversal.  Since we find no error in the various rulings, <br>there is no cumulative effect to consider. <br>                 IV.  The Carjacking Convictions <br>         Prez and Santiago were convicted of carjacking under 18 <br>U.S.C.  2119.  That statute reads in full as follows: <br>                       Whoever, with the intent to cause death <br>         or serious bodily harm takes a motor vehicle <br>         that has been transported, shipped, or <br>         received in interstate or foreign commerce <br>         from the person or presence of another by <br>         force and violence or by intimidation, or <br>         attempts to do so, shall    <br> <br>                           (1)  be fined under this title or <br>           imprisoned not more than 15 years, or <br>           both, <br> <br>                           (2)  if serious bodily injury (as <br>           defined in section 1365 of this title, <br>           including any conduct that, if the conduct <br>           occurred in the special maritime and <br>           territorial jurisdiction of the United <br>           States, would violate section 2241 or 2242 <br>           of this title) results, be fined under <br>           this title or imprisoned not more than 25 <br>           years, or both, and <br> <br>                           (3)  if death results, be fined under <br>           this title or imprisoned for any number of <br>           years up to life, or both, or sentenced to <br>           death. <br> <br>         The district court apparently considered that the <br>elements of the offense were set forth in the first, unnumbered <br>paragraph of the statute and instructed the jury accordingly, <br>without any objection from the defendants.  After the defendants <br>were convicted, the court sentenced them each to life imprisonment <br>in accordance with subsection (3). <br>         While this appeal was pending, the Supreme Court held <br>that subsections (1), (2), and (3) of  2119 define "three separate <br>offenses by the specification of distinct elements, each of which <br>must be charged by indictment, proven beyond a reasonable doubt, <br>and submitted to a jury for its verdict."  Jones v. United States, <br>__ U.S. __ , 119 S. Ct. 1215, 1228 (1999).  The present form of the <br>statute is different in one respect from the statute considered in <br>Jones.  In 1994, Congress amended the initial, unnumbered paragraph <br>of  2119 by deleting the then-existing phrase "possessing a <br>firearm as defined in section 921 of this title" and substituting <br>in its place the current phrase "with the intent to cause death or <br>serious bodily harm."  The amendment thus altered the elements of <br>the offense, eliminating as an element the possession of a firearm, <br>and adding an element of specific intent.  The Supreme Court's <br>construction of the statute in Jones is not affected by this <br>amendment, so the fact of the amendment does not provide any basis <br>for distinguishing Jones or concluding that it does not lay down a <br>rule that must be applied in this case. <br>         What Jones held, and what is of importance here, is that <br>subsections (1), (2), and (3) do not simply set forth sentencing <br>options for the judge, but rather define separate offenses.  A <br>person may be sentenced under subsection (3) only if he has been <br>convicted of the offense defined by subsection (3).  And a person <br>may be convicted of that crime only if the jury has found, beyond <br>a reasonable doubt,  the existence of the element set forth in <br>subsection (3) -- that death resulted from the carjacking.   <br>         Here, the indictment specifically referred to  2119(3) <br>and adequately set forth the elements necessary to convict Prez <br>and Santiago of the offense defined by that subsection, but the <br>court omitted to instruct the jury that they could convict of that <br>offense only if they found beyond a reasonable doubt that Vzquez's <br>death resulted from the carjacking.   The government suggests that <br>the offense defined in  2119(3) was adequately charged since the <br>jury was instructed on the element of "inten[t] to cause death or <br>serious bodily harm" contained in the initial, unnumbered <br>paragraph.  But subsection (3) requires more than proof of intent <br>to cause death or serious bodily harm; it requires proof that death <br>actually resulted.  They are different elements.   <br>         The defendants urge now that the failure of the district <br>court to instruct on the distinct offense element set forth in <br>subsection (3) requires that their convictions of that offense be <br>set aside.  Because the defendants did not raise any objection to <br>the instruction at trial, our review is for plain error.  See Fed. <br>R. Crim. P. 30 and 52(b).  For us to find "plain error," there must <br>be an (1) error, (2) that is plain, and (3) that affects <br>substantial rights.  See Johnson v. United States, 520 U.S. 461, <br>467 (1997); United States v. Olano, 507 U.S. 725, 732 (1993).  If <br>those conditions are met, an appellate court may exercise its <br>discretion to correct the error provided that a fourth criterion is <br>also met: the error must have "seriously affect[ed] the fairness, <br>integrity, or public reputation of judicial proceedings."  Olano, <br>507 U.S. at 732 (quoting United States v. Atkinson, 297 U.S. 157, <br>160 (1936)). <br>         We need not dwell at length on the first two parts of <br>this four-part inquiry; they are clearly satisfied.  The <br>interpretation of the carjacking statute announced in Jones applies <br>to this case, as it must to any case on direct review, see Griffith <br>v. Kentucky, 479 U.S. 314 (1987), and thus renders the district <br>court's omission of the subsection (3) element from the jury <br>instruction an "error."  Furthermore, even though the error was not <br>"plain" at the time of trial, "it is enough that an error be <br>'plain' at the time of appellate consideration."  Johnson, 520 U.S. <br>at 468.  Therefore, we move to the third and fourth parts of the <br>plain error inquiry. <br>         An error does not "affect substantial rights" for the <br>purposes of the third part of the plain error review unless it was <br>"prejudicial," meaning that it "must have affected the outcome of <br>the district court proceedings."  United States v. Coln-Muoz, 192 <br>F.3d 210, 222 (1st Cir. 1999) (quoting Olano, 507 U.S. at 734).  <br>This phase of the inquiry is substantially equivalent to the <br>analysis for harmless error under Rule 52(a), with the important <br>distinction that, no objection having been made in the trial court, <br>it is the defendants' burden to convince us that the error <br>complained of was prejudicial.  See id. <br>         The defendants have not come close to making a convincing <br>showing of prejudice.  Their argument is both perfunctory and <br>conclusory; they seem to think that it is enough that they point <br>out the Jones holding and the trial court's omission of an <br>instruction consistent with that holding.  In other words, they <br>argue as if satisfying the first two steps of the plain error <br>analysis is enough.  It is not.  See United States v. West Indies <br>Transp., Inc., 127 F.3d 299, 306 (3d Cir. 1997) ("Defendants here <br>have not brought to our attention any facts suggesting that a jury <br>might have reached a conclusion different from the district court <br>. . . ."), cert. denied, 522 U.S. 1052 (1998). <br>         Considering the evidence that was before the jury and the <br>jury's resolution of other issues presented to them, we have no <br>difficulty concluding that the trial court's failure to instruct <br>about the distinct element defined by subsection (3) had no <br>prejudicial effect on the defendants.  Under Count One of the <br>indictment, the jury convicted the defendants of taking a motor <br>vehicle from Vzquez by force and violence with the intent to cause <br>death or serious bodily injury.  Indeed, the indictment, which was <br>read to the jury, specifically alleged that the "force and <br>violence" consisted of "shooting him one time causing his death."  <br>Under Count Two, the jury convicted the defendants of using or <br>carrying a firearm during and in relation to a crime of violence.  <br>Stated less formally, the jury found that when the defendants stole <br>Vzquez's car from him, they were armed with a gun and they <br>harbored the specific intent to cause death or serious bodily <br>injury.  They also had heard uncontroverted evidence that Vzquez <br>died of a gunshot wound to the back (not to mention Serrano's <br>testimony that the defendants admitted killing him).  Even if it <br>were hypothetically possible, it is as a practical matter <br>inconceivable that this jury would have hesitated to find the <br>omitted element beyond a reasonable doubt -- that Vzquez's death <br>resulted from the carjacking.  In convicting the defendants in <br>accordance with the instructions they received, the jury by <br>necessity would have found the facts establishing the linkage <br>between the defendants, the carjacking, and the bullet in Vzquez's <br>back.  See, e.g., United States v. Hastings, 134 F.3d 235, 244 (4th <br>Cir.), cert. denied sub nom. Phillips v. United States, 523 U.S. <br>1143 (1998). <br>         The fourth condition for finding plain error is not <br>satisfied either.  The overwhelming evidence that the carjacking <br>resulted in death, coupled with the verdicts that were rendered, <br>not only serves to allay any worry that the defendants' substantial <br>rights were prejudiced but also adequately forestalls a conclusion <br>that the omission of an instruction on the subsection (3) element <br>could have seriously affected the fairness, integrity, or public <br>reputation of judicial proceedings.  Johnson and a host of <br>subsequent cases have reached precisely the same conclusion under <br>similar circumstances.  See Johnson, 520 U.S. at 469-70. <br>         We find no plain error requiring reversal. <br>                          V.  Conclusion <br>         For all the foregoing reasons, the judgments of <br>conviction in each case are affirmed.</pre>

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