                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit

No. 07-1617

                      UNITED STATES OF AMERICA

                                Appellee,

                                     v.

                       CARLOS L. AYALA-LOPEZ,
                             a/k/a Macro,

                        Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Jay A. García-Gregory, U.S. District Judge]


                                  Before

                         Lynch, Chief Judge
                     Souter, Associate Justice,*
                     and Lipez, Circuit Judge.


     Rachel Brill was on brief for appellant.
     Luke V. Cass, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on brief, for
appellee.


                             August 6, 2012




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
          SOUTER, Associate Justice. Carlos Ayala-Lopez (“Ayala”)

was convicted of murdering a police officer with the United States

Department of Veterans Affairs, as well as committing several other

crimes while acting in a conspiracy to distribute drugs. He claims

a number of reversible errors: in the district court’s failure to

sever his trial from that of a co-defendant; in trial by a death-

qualified jury; in the jury’s acceptance of the evidence as

sufficient to prove first degree murder; in the court’s refusal to

instruct on manslaughter; and in its failure to grant relief from

two mistakes in the indictment, one being multiple counts of using

various guns in the course of the conspiracy (exposing him to

double jeopardy), the other combining more than one gun offense in

a single count.    As the Government concedes, Ayala cannot be

punished separately for each gun that he possessed in the course of

a single predicate conspiracy, and we accordingly vacate two of his

gun possession convictions.   On all other matters, we affirm.

          Ayala came to the notice of federal agents responding to

reports of violence and drug activity at a public housing project

in Puerto Rico.   FBI Special Agent William Ortiz observed Ayala

holding a firearm in a drug distribution area; Ayala was seen near

individuals engaging in drug transactions; and he was videotaped

handing a pistol to Luis Llorens, the leader of a gang that sold

the drugs.   Local police officers repeatedly saw him at the drug

sales point, often holding a gun, and the officers seized firearms


                                -2-
from him several times.       A number of cooperating witnesses at

Ayala’s trial testified to their recollections of his involvement

with the drug gang and his use of guns in robberies and disputes

with a rival criminal organization.

          On April 24, 2002, Llorens ordered the gang members to

steal some firearms to replenish their diminished stock of weapons,

and according to a confidential informant, Ayala, Llorens, Angel

Obregón-Fontánez, and Eusebio Llanos-Crespo set out to do their

part by driving to a Veterans Affairs hospital to grab a handgun

from a police officer.      Llorens stayed in the car and Obregón-

Fontánez hid in a nearby phone booth while Ayala and Llanos-Crespo

approached the officer.    When he resisted, Ayala shot him twice in

the ensuing struggle.     Ayala was later recorded describing how it

was that, after the officer “made a move” and scratched him, he

“took him down” by shooting him.        He said that, at that point,

Llanos-Crespo began to fire at the officer as well.        A bullet

recovered from the victim’s body matched a .38 caliber pistol

linked to Ayala.

                                   I

          The initial indictment accused Ayala and eight others of

drug conspiracy and unlawful possession of firearms in the course

of it, on top of charging Ayala with the murder.    After the murder

count was certified as capital, both Ayala and several non-capital

co-defendants moved to sever their trials, and Judge Salvador E.


                                  -3-
Casellas, then assigned to the case, ordered the severance. United

States v. Ayala-Lopez, 319 F. Supp. 2d 236 (D.P.R. 2004).       The

ruling, however, had no immediate effect on the prosecution of

defendant Llanos-Crespo, who was then in juvenile proceedings, but

the judge wrote in a footnote that “[i]n the event that [Llanos-

Crespo] joins this case, he will be tried with Co-defendant Ayala.”

After Judge Casellas had taken senior status, and the case had been

transferred to Judge Jay A. García-Gregory, Llanos-Crespo was

certified to be tried for the murder as an adult, and it was Judge

García who issued a summary order denying Ayala’s motion to sever

his trial from Llanos-Crespo’s.

          Ayala argues that the latter ruling was an error of law,

as being inconsistent with the earlier one in the same case, see

Ellis v. United States, 313 F.3d 636, 646-48 (1st Cir. 2002)

(“[W]hen a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same

case.”), and he says that denying the motion was an abuse of

discretion in any event.   As to the first point, law of the case

doctrine would help Ayala in his second motion to sever only if the

first ruling had ordered severance of his trial from Llanos-

Crespo’s or had established a category of cases for mandatory

severance that unquestionably covered Llanos-Crespo’s.    But Judge

Casellas’s order did neither of those things, covering nothing more

than Ayala’s trial and those of the defendants then before him who


                                  -4-
were not charged with the murder.          If anything, the doctrine cuts

against Ayala, since Judge Casellas expressly contemplated that

Ayala and Llanos-Crespo would be tried together if Llanos-Crespo

was tried as an adult.        See Ayala-Lopez, 319 F. Supp. 2d at 240

n.3.

           Nor did Judge García abuse his discretion in denying

Ayala’s second motion to sever. As a formal matter, Ayala suggests

it was an abuse to rule without giving reasons for denying the

motion,   and   he   points   to   cases    holding   that    the    Board   of

Immigration Appeals abused its discretion when it failed to give

any reasons for denying motions to reopen proceedings.              See, e.g.,

Zhao v. U.S. Dep’t. of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

But these cases arose in administrative adjudications on a subject

of   administrative    speciality,    and     Ayala   cites   no    authority

requiring a district court to provide written findings when denying

a severance motion based on law routinely administered by the trial

courts in the first instance.      Even a summary denial of a motion to

sever is to be “treated with a considerable amount of deference,”

and overturned only on a showing of “manifest abuse of discretion.”

See United States v. DeCologero, 530 F.3d 36, 52 (1st Cir. 2008).

Accordingly, although we do not have the district court’s reasoning

before us, we can review the merits of the decision to deny, and we

find nothing unreasonable about it.




                                     -5-
            There is a strong preference in the federal system for

holding joint trials of defendants charged with related crimes,

Zafiro v. United States, 506 U.S. 534, 537 (1993), “the general

rule [being] that those indicted together are tried together to

prevent    inconsistent     verdicts     and        to   conserve   judicial        and

prosecutorial resources,” DeCologero, 530 F.3d at 52.                        Separate

trials are not warranted unless “there is a serious risk that a

joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment

about guilt or innocence.”        Zafiro, 506 U.S. at 539.

            Ayala says that he was prejudiced in his joint trial with

Llanos-Crespo     because   he   alone        was    designated     as   a   capital

defendant, suggesting to the jury that he was more blameworthy than

Llanos-Crespo,    whom    the    jury    ultimately        acquitted.         And   he

complains of a further unfair handicap in subjecting him to Llanos-

Crespo’s defense strategy.        Llanos-Crespo argued that he himself

was not involved in the shooting, but did not directly argue that

Ayala was. Nonetheless, Ayala says that the implication of Llanos-

Crespo’s argument was that Ayala and Obregón-Fontánez were the ones

responsible.

            Neither argument calls for relief.               His claim that his

status as the only capital defendant created a disadvantageous

contrast   with    Llanos-Crespo        is    purely     speculative.         As     to

conflicting defenses, Ayala has hardly “demonstrate[d] that the


                                        -6-
defenses     are    so   irreconcilable      as   to    involve     fundamental

disagreement over core and basic facts.”               United States v. Peña-

Lora, 225 F.3d 17, 34 (1st Cir. 2000) (quoting United States v.

Paradis, 802 F.2d 553, 561 (1st Cir. 1986) (internal quotation mark

omitted)).     The sort of conflict that stands in the way of joint

trials is a function of conflicting evidence, of which there was

none here; indeed, Llanos-Crespo presented no evidence at all. See

United States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997) (“[T]he

level of antagonism in defenses is measured by the evidence

actually     introduced     at   trial;     argument    by   counsel   is    not

evidence.”).       Nor is it even likely that the two defendants’

overall strategies conflicted in any material way; Ayala does not

contend that he had no part in the shooting (given the powerful

inculpatory evidence), and Llanos-Crespo’s argumentative suggestion

that Ayala was involved was consequently unlikely to be harmful.

In any case, it was nothing more than finger pointing, which is not

enough to taint a trial.           See id.    Finally, the district court

instructed    the    jury   that    the   evidence      presented   should    be

considered “separately and individually as to each defendant,” and

made it clear that the verdict was not an either-or tradeoff.                See

United States v. Rodriguez-Marrero, 390 F.3d 1, 27 (1st Cir. 2004);

United States v. Capelton, 350 F.3d 231, 239 (1st Cir. 2003).

Denying the motion to sever was not an abuse of discretion.




                                      -7-
                                II

           Ayala was convicted of a capital crime by a death-

qualified jury, that is, one comprising jurors who had been found

to be able to fulfill their oaths to follow the law by considering

imposition of the death penalty if they found the defendant guilty.

See Wainright v. Witt, 469 U.S. 412, 424 (1985). Although the jury

opted against death here, Ayala presses his objection to trial by

a jury thus qualified, arguing that it was more prone to convict

than a jury would have been if selected without concern for the

possibility of a death sentence.

           It is hard to see the sense of his point, since he was

being tried for a capital offense subject to the Government’s

request for death, all of which shows that his real complaint is

about subjecting him to the possibility of imposing the capital

penalty itself, to which he did in fact object.    Prior to trial,

Ayala filed several motions attacking the (potential) application

of the penalty, all of which were summarily denied by the trial

judge.   He reiterates his objections on appeal, now claiming that

the trial court committed reversible error by trying him before a

death-qualified jury when a sentence of execution should have been

precluded as a matter of law.

           Ayala cites his prior motions in complaining that he was

charged in two separate counts for a single murder, and in alleging

(without evidence) that the Second Superseding Indictment was


                                -8-
obtained from a grand jury unaware that Ayala might be subject to

the death penalty; but these motions were aimed at earlier versions

of the indictment than the one on which he was actually tried.       As

for his broader attack on the penalty statute, this court has

previously rejected claims that the Federal Death Penalty Act

(FDPA), 18 U.S.C. §§ 3591-3598, is unconstitutionally arbitrary,

United States v. Sampson, 486 F.3d 13, 23-25 (1st Cir. 2007), as

well as claims that the FDPA cannot apply in Puerto Rico, United

States v. Acosta-Martinez, 252 F.3d 13 (1st Cir. 2001).              In

deciding Ayala’s first appeal, we have already upheld the validity

of the death penalty notices he received, see United States v.

Ayala-Lopez, 457 F.3d 107 (1st Cir. 2006), and we have rejected

constitutional challenges to the FDPA based upon Ring v. Arizona,

536 U.S. 584 (2002) (holding jury must determine the presence or

absence of aggravating factors in death penalty sentencing), see

Sampson, 486 F.3d at 20-23.      In sum, Ayala was charged with a

capital crime and has failed to adduce any reason that a death

sentence would not have been constitutional in his case.       His jury

was properly death-qualified, and we accordingly have no reason to

consider any consequence of a death-qualified jury in a case in

which   the   death   penalty   for    some   reason   could   not   be

constitutionally imposed. See Washington v. State, 737 So. 2d 1208

(Fla. Dist. Ct. App. 1999).




                                 -9-
                                      III

          Ayala was convicted of first-degree murder under 18

U.S.C. § 1111, the charge being that he murdered a federal officer

“with premeditation” and “malice aforethought.”                In arguing that

the evidence was insufficient to prove premeditation beyond a

reasonable doubt, he adverts to the trial testimony showing that he

and the others went to the Veterans Affairs hospital to steal a gun

from the officer, not to kill him, and the situation became chaotic

rapidly: the officer grappled with Ayala and scratched his arm

immediately before Ayala shot him.              There was, Ayala says, no

direct evidence of deliberation before the shots were fired, and

the first degree murder charges should have been withdrawn from the

jury under Federal Rule of Criminal Procedure 29(a).

          But the murder conviction is not vulnerable on our de

novo review, given the reasonable evidentiary inferences that may

be drawn in support of the verdict.            See United States v. Rosado-

Pérez,   605   F.3d     48,   52    (1st     Cir.     2010).       “Premeditation

contemplates   a      temporal     dimension,       which   need    only   be   an

appreciable amount of time.”         United States v. Catalán-Roman, 585

F.3d 453, 474 (1st Cir. 2009) (internal quotation marks omitted).

This time “varies with each case” and the key element is the “fact

of deliberation, of second thought.”                United States v. Frappier,

807 F.2d 257, 261 (1st Cir. 1986).                  As a general rule, second

thought is sufficiently shown when a defendant inflicts deadly


                                      -10-
force on a victim already wounded, Catalán-Roman, 585 F.3d at 478,

as was the case here.       Ayala shot the officer and then shot him

again, first in the head, and then through the heart, and his own

description of the sequence confirms that he thought before making

a conscious decision to shoot.      According to the testimony of one

of Ayala’s confreres, he said that he that he “took [the officer]

down” because he “got mad” after being scratched.

          Ayala does no better on his complementary argument that

he was entitled to an instruction on manslaughter, see 18 U.S.C.

§ 1112, as a lesser offense included in the crime of murder.         This

would require him to show that his factual objection going to the

element of premeditation could rationally have been resolved in his

favor by a conviction for manslaughter.            See United States v.

Ferreira, 625 F.2d 1030, 1031 (1st Cir. 1980).

          As it was, the district court did instruct the jury on

second-degree murder as a lesser included offense, that is, murder

without premeditation but with malice aforethought, but Ayala says

that this did not go far enough: “the struggle, the scratches, the

suddenness, the chaos” and his “consumption of narcotics and

alcohol” all combined to create a legitimate factual dispute over

whether Ayala killed the officer without malice “upon a sudden

quarrel   or    heat   of   passion,”    thereby   committing   voluntary

manslaughter.




                                  -11-
           This issue, too, gets de novo review, United States v.

Boidi, 568 F.3d 24, 27 (1st Cir. 2009), which reveals no error in

the district court’s refusal to give the requested instruction.

The evidence is unequivocal that he shot the officer twice in the

course of robbing him, while the officer’s own weapon remained in

its holster, and no jury could rationally find in his favor on a

claim   that   he   acted   on   provocation   sufficient   to    incite   a

reasonable person to kill another in a fit of passion.           See, e.g.,

United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982).           The

evidence shows only that while carrying out a planned armed robbery

of a firearm, Ayala intentionally shot his victim after being

scratched on his hand or arm.

                                     IV

           Lastly, Ayala claims there were errors in the indictment,

starting with his contention that his convictions for firearms

possession offenses are duplicative, in violation of the Double

Jeopardy Clause. Count two of the indictment used at trial charged

possession of a .45 caliber Colt pistol in furtherance of a drug

trafficking crime, violating 18 U.S.C. § 924(c)(1)(A)(ii); count

three charged similar possession of a .357 caliber Ruger revolver;

count four named a .38 caliber Smith & Wesson revolver in violation

of 18 U.S.C. § 924(c)(1)(A)(iii); and count six charged possession,

carrying, brandishing, using, and discharging firearms during and

in relation to a crime of violence, when he used a firearm to kill


                                    -12-
a person with malice aforethought, contrary to 18 U.S.C. § 924(c)

and (j).   He argues that the firearm convictions under counts two,

three, and four, on which he received multiple, consecutive prison

sentences, subjected him to double jeopardy because they relate to

a single drug conspiracy.   The prosecution agrees with him.

           Since “the imposition of multiple consecutive sentences

under subsection 924(c) for using multiple weapons during a single

predicate crime . . . impinge[s] upon fundamental double jeopardy

principles,” United States v. Rodriguez, 525 F.3d 85, 111 (1st Cir.

2008) (internal quotation marks omitted), the Government concedes

that only one of the firearm convictions may stand, and proposes

that we vacate the convictions, sentences, and special assessments

as to counts two and four.1      We do so, and because Ayala was

sentenced to life imprisonment on counts one, five, and six, this

remedy “requires only a mechanical adjustment on remand.”   United

States v. King, 554 F.3d 177, 181 (1st Cir. 2009).

           Ayala contends that his conviction under count three

should be vacated as well, because the Government that charged him

with duplicative counts should not now be favored with the choice

of which conviction of the three will remain standing.   But such a

penalty for charging error has no precedent or support; courts can

correct these sorts of mistakes on a defendant’s motion, just as



     1
       Ayala was sentenced to seven years on count two and twenty-
five years on count four, as well as a $600 special assessment.

                                -13-
the Government concedes we do now, and there is no need for in

terrorem deterrence beyond the typical remedy we order here.                    See

id.; Rodriguez, 525 F.3d at 112.              This disposition also answers

Ayala’s claim that count four was duplicative of count six.

            As his final assignment of error, Ayala claims that count

six    erroneously   described    the    offense        conduct   necessary     for

conviction under 18 U.S.C. § 924(c)(1)(A), putting him at risk of

conviction for innocent acts, or, in the alternative, he says that

count six described two separate violations of § 924(c)(1)(A), a

duplication requiring vacatur.          We think he is mistaken.

            Section 924(c)(1)(A) applies to “any person who, during

and in relation to any crime of violence . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a

firearm.”     Thus the statute arguably describes two distinct,

culpable acts, see United States v. Arreola, 467 F.3d 1153 (9th

Cir. 2006): (1) using or carrying during and in relation to, and

(2) possessing in furtherance.           Ayala argues that the indictment

here   confused   the    two   types   of     conduct    by   charging   that    he

“knowingly possessed, carried, brandished, used and discharged

firearms . . . during and in relation to a crime of violence”

(emphasis added).       Thus, he contends, it allowed a conviction for

possession under the lower standard of “during and in relation to,”

rather than “in furtherance of,” a crime of violence.                     If the




                                       -14-
indictment were simply for violating (c), he would have a colorable

argument.2

               Count six, however, charged Ayala with violating 18

U.S.C. § 924(j), which provides that “[a] person who, in the course

of a violation of subsection (c), causes the death of a person

through the use of a firearm, shall . . . if the killing is a

murder . . . be punished by death or by imprisonment for any term

of years or for life.”          Hence, to find a violation of § 924(j) by

causing death through the use of a firearm as well a violation of

(c), a jury must find death by “use” and “during and in relation

to” as (c) uses those terms.              As a consequence, the charge of

possession “during and in relation to” was rendered surplusage, and

because the jury was instructed to convict on count six only if

they       found   a   (j)   violation   beyond   a   reasonable   doubt,   the

indictment’s singular reference to possession did him no harm.

               This is confirmed by the verdict form showing that the

jury unanimously convicted Ayala of violating (j) by “causing the

death of [the victim] with a firearm, unlawfully,” the fair reading

of which presupposes finding beyond a reasonable doubt that the

defendant used a firearm during and in relation to a crime of


       2
       We need not decide whether the relation and furtherance
elements differ in any material way, and we express no opinion on
the matter.    Nor is it necessary here to determine whether
§ 924(c)(1)(A) creates two separate offenses or merely specifies
two separate means of committing a single offense. Compare United
States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004), with Arreola,
467 F.3d at 1157-58.

                                         -15-
violence under § 924(c)(1)(A).           Thus, any error by including the

term “possession” in the indictment was harmless owing to its

irrelevance, which apparently did not in any way affect the jury’s

conviction of Ayala under § 924(j).3           See Arreola, 467 F.3d at 1162

(duplicative error in jury verdict form was harmless because it

likely did not affect the jury’s decision to convict).

               We   remand   to   the    district   court   to   vacate   the

convictions, sentences, and special assessments on counts two and

four.       We affirm in all other respects.

               So ordered.




        3
       Ayala argues that, even if the indictment properly charged
two separate offenses of possession and use, it was “duplicitous”
for charging two offenses in one count, thereby allowing the jury
to convict even if the jurors did not reach a unanimous verdict on
any one offense. We reject this alternative for the same reason we
cannot accept Ayala’s primary argument: it is clear that the jury
unanimously found Ayala guilty of using a firearm unlawfully to
kill another person, in violation of 18 U.S.C. § 924(j) as well as
(c).

                                        -16-
