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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-1944 <br> <br>                    UNITED STATES OF AMERICA, <br>                            Appellee, <br> <br>                                v. <br> <br>                      EDWIN HERNANDEZ, A/K/A <br>                     EDWIN HERNANDEZ-FAVALE, <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. Perez-Gimenez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>           Coffin and Bownes, Senior Circuit Judges. <br>                                 <br>                                 <br> <br> <br>     Edgardo Rodriguez-Quilichini, Assistant Federal Defender, with <br>whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, <br>for appellant. <br>     Antonio R. Bazan, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, <br>Senior Litigation Counsel, Camille Vlez-Riv and Nelson Prez- <br>Sosa, Assistant United States Attorneys, were on brief, for the <br>United States. <br> <br> <br> <br> <br> <br>June 12, 1998 <br> <br> <br> <br> <br>

  SELYA, Circuit Judge.  Tried on a three-count indictment, <br>defendant-appellant Edwin Hernandez-Favale (Hernandez) prevailed on <br>two.  He now seeks a clean sweep.  For the reasons that follow, we <br>affirm his conviction. <br>I.  BACKGROUND <br>  We present the facts in the light most congenial to the <br>guilty verdict, consistent with record support.  See United Statesv. Maraj, 947 F.2d 520, 522-23 (1st Cir. 1991). <br>  In the early evening of January 30, 1996, Juan Carlos <br>Lado, driving a Nissan sports car, stopped at a traffic light in <br>the Isla Verde section of San Juan, Puerto Rico.  A stranger poked <br>a gun (described as a small, nickel-plated pistol) through Lado's <br>open car window, threatened his life, forced him to exit the <br>vehicle and disgorge his valuables, and ultimately absconded with <br>the car and the loot.  Lado kept a .45 caliber pistol secreted <br>within the vehicle, and the perpetrator unwittingly made off with <br>that firearm as well. <br>  Lado immediately called the police, who were able to <br>recover his automobile that night.  Lado retrieved it the next day.  <br>His pistol was gone, but he discovered a full ammunition magazine <br>(which neither belonged to him nor fit his gun) under the driver's <br>seat.  Lado informed the authorities of these facts and turned over <br>the magazine. <br>  On February 3, law enforcement officers arrested <br>Hernandez (a previously convicted felon who had a history of <br>involvement in violent crimes) and a companion (known only as <br>Alicea) on charges unrelated to the January 30 carjacking.  When <br>the police discovered a pistol on Alicea's person and identified it <br>by its serial number as Lado's, they quickly arranged a <br>photographic spread.  Reviewing the spread, Lado tabbed Hernandez <br>as the man who accosted him and absconded in his Nissan. <br>  A federal grand jury thereafter charged Hernandez with <br>carjacking, 18 U.S.C.  2119(1) (1994), using or carrying a firearm <br>during a crime of violence, 18 U.S.C.  924(c)(1) (1994), and being <br>a felon in possession of a firearm, 18 U.S.C.  922(g)(1) (1994).  <br>A petit jury acquitted Hernandez on the first two counts but <br>convicted him on the third.  Judge Perez-Gimenez denied Hernandez's <br>post-trial motions and this appeal ensued. <br>II.  ANALYSIS <br>  The appellant attacks his conviction on three fronts.  We <br>discuss his claims sequentially, interspersing our discussion with <br>further facts as necessary to place each claim into proper <br>perspective. <br>                    A.  Judgment of Acquittal. <br>  After the jury verdict, the appellant moved under Fed. R. <br>Crim. P. 29(a) for judgment of acquittal on the third count.  The <br>district court denied this motion, adjudging the evidence presented <br>at trial sufficient to support the felon in possession conviction.  <br>On appeal, Hernandez admits his status as a previously convicted <br>felon but assigns error to the lower court's ruling on the ground <br>that the government failed to prove his possession of a firearm <br>beyond a reasonable doubt. <br>  We review Rule 29 determinations de novo.  See United <br>States v. Carroll, 105 F.3d 740, 742 (1st Cir.), cert. denied, 117 <br>S. Ct. 2424 (1997).  The Rule 29 standard is identical in both the <br>trial and appellate courts; the tribunal must discern "whether, <br>after assaying all the evidence in the light most amiable to the <br>government, and taking all reasonable inferences in its favor, a <br>rational factfinder could find, beyond a reasonable doubt, that the <br>prosecution successfully proved the essential elements of the <br>crime."  United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. <br>1994).  This formulation requires that "we consider all the <br>evidence, direct and circumstantial, and resolve all evidentiary <br>conflicts in favor of the verdict."  Carroll, 105 F.3d at 742. <br>  In support of his claim of evidentiary insufficiency, the <br>appellant makes two basic points.  First, he asseverates that there <br>was no direct evidence to support his conviction because the <br>authorities never recovered the carjacker's gun (and, therefore, <br>the jury never saw it).  We reject this asseveration out of hand.  <br>The government presented direct evidence of Hernandez's guilt in <br>the form of Lado's eyewitness testimony that Hernandez was armed.  <br>(Indeed, Lado described the gun in some detail and testified that <br>the appellant first put it to his head and later hit him across the <br>mouth with it.)  Since the jurisprudence of Rule 29 requires that <br>a reviewing court defer credibility determinations to the jury, seeO'Brien, 14 F.3d at 706, this testimony, in itself, is enough to <br>support the "possession of a firearm" element of the offense of <br>conviction. <br>  In all events, it is common ground that "the criminal law <br>does not place a special premium on direct evidence."  Id.  To the <br>contrary, the prosecution may satisfy its burden of proof by direct <br>evidence, circumstantial evidence, or any combination of the two.  <br>See id.; see also United States v. Echeverri, 982 F.2d 675, 677 <br>(1st Cir. 1993).  Given Lado's testimony and the otherwise- <br>unexplained presence of a magazine full of bullets in the stolen <br>car, a rational jury surely could have believed that the appellant <br>brandished a firearm on January 30, 1996. <br>  The appellant next posits that his conviction cannot <br>stand because it is inconsistent with the jury's verdict on the <br>other two counts.  This thesis, too, is flawed.  For one thing, <br>inconsistent verdicts do not automatically require reversal of a <br>conviction.  See United States v. Powell, 469 U.S. 57, 62 (1984); <br>United States v. Dunn, 284 U.S. 390, 393-94 (1932); United Statesv. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990).  Both the interest <br>and the appearance of justice are fully vindicated as long as the <br>reviewing court assures itself that, regardless of an acquittal in <br>some other case or on some other count, the evidence is legally <br>sufficient to support a guilty verdict on the count of conviction.  <br>See Powell, 469 U.S. at 66; Bucuvalas, 909 F.2d at 597.  The <br>evidence of record here easily passes that modest test. <br>     For another thing, a close look at the statutes involved <br>in this case reveals no necessary inconsistency.  The statute <br>underlying the carjacking count, on which the jury acquitted the <br>appellant, requires the prosecution to prove beyond a reasonable <br>doubt that the defendant (1) took a motor vehicle, (2) that has <br>moved in interstate commerce, (3) from another person, (4) by force <br>and violence or by intimidation, (5) with the intent to cause death <br>or serious bodily harm.  See 18 U.S.C.  2119 (1994).  The statute <br>underlying the second count, on which the jury also acquitted, <br>requires the government to prove beyond a reasonable doubt that the <br>defendant (1) used or carried a firearm, (2) during and in relation <br>to a crime of violence or drug trafficking offense.  See 18 U.S.C. <br> 924(c)(1) (1994).  In theory, the jury could have decided that, <br>while Hernandez was indeed the person who accosted Lado, gun in <br>hand, the government failed to prove the intent element in the <br>carjacking statute (and, thus, failed to prove the "crime of <br>violence" element needed to convict under the "use and carry" <br>statute).  The probability of such a scenario is not the issue.  It <br>is possible, and a finding made pursuant to this scenario would not <br>in any way impugn the guilty verdict on the felon in possession <br>count.  So viewed, the verdicts are not irretrievably <br>inconsistent. <br>                 B.  The Prosecution's Summation. <br>     The appellant next calls our attention to the <br>prosecutor's comments concerning constructive possession.  He <br>assigns error both to the trial court's overruling of his <br>contemporaneous objection to those comments and to the court's <br>denial of his subsequent motion for a mistrial. <br>     Our approach is familiar.  We first must determine <br>whether the trial court abused its discretion in overruling the <br>objection (thus, in effect, deeming the prosecutor's remarks <br>proper), and, if so, we must proceed to decide whether the <br>offending remarks were sufficiently prejudicial that they served to <br>deny the defendant a fair trial.  See United States v. Grabiec, 96 <br>F.3d 549, 552 (1st Cir. 1996); United States v. Wood, 982 F.2d 1, <br>4 (1st Cir. 1992).  As to the appellant's related point, we <br>likewise review the district court's resolution of a mistrial <br>motion under an abuse of discretion rubric.  See United States v. <br>Pierro, 32 F.3d 611, 617 (1st Cir. 1994).  Here, because the <br>appellant premised his motion for a mistrial on the challenged <br>portion of the prosecutor's summation, the two assignments of error <br>merge into a single forensic unit, and we consider them as such. <br>     The government concedes that it charged Hernandez in <br>count three with possession of a firearm other than Lado's .45 <br>caliber pistol.  The appellant maintains, however, that the <br>prosecutor's reference to Lado's gun confused the issue and led to <br>a conviction on count three based on his constructive possession of <br>that weapon.  In short, the appellant insists that, because of the <br>prosecutor's improper argument, the jury found him guilty of <br>possessing a firearm (namely, Lado's pistol) other than the one for <br>which he was indicted (namely, the small, nickel-plated pistol that <br>never surfaced). <br>     This theory lacks force.  The record reveals that the <br>prosecutor's summation was well within the pale.  In it, he <br>suggested that, because Lado's pistol was in Alicea's waistband <br>when Alicea and Hernandez were arrested, the jury could find <br>Hernandez to have had constructive possession of Lado's pistol onFebruary 3 and could infer, based on such a finding, that Hernandez <br>was at the crime scene on January 30 and took the car containing <br>the weapon.  If any ambiguity exists as to the purport of the <br>prosecutor's soliloquy    and we see none   his remarks during the <br>rebuttal portion of his closing statement, reproduced in the <br>margin, make it crystal clear that the prosecutor aimed his <br>constructive possession reference solely in this direction. <br>     That ends the matter.  Since the challenged portion of <br>the summation was proper, the district court did not err either in <br>overruling the appellant's objection or in denying his subsequent <br>motion for a mistrial. <br>                        C.  The Jury Note. <br>     While a jury deliberates, the attorneys typically hover <br>near an empty courtroom awaiting the verdict.  Sometimes, however, <br>the judge cuts counsel some slack and permits them to wander.  In <br>this instance, after charging the jury, Judge Perez-Gimenez gave <br>the attorneys clear instructions:  they need not remain in the <br>courtroom, but they were to leave word of their whereabouts with <br>the clerk and be available to the court on ten minutes notice.  The <br>judge made it plain that he would wait no longer than ten minutes <br>should the jury propound a question.  The appellant's trial counsel <br>availed herself of the court's largesse and left word that she <br>would be in a magistrate judge's courtroom on the same floor of the <br>courthouse. <br>     During the course of their deliberations, the jurors sent <br>the judge a note requesting a definition of the term "possession of <br>a firearm" vis--vis count three.  Judge Perez-Gimenez summoned the <br>attorneys.  When the appellant's counsel did not appear within the <br>allotted time, the judge summoned her again and waited an <br>additional ten minutes, but to no avail.  The judge then took the <br>bull by the horns and responded to the jurors' query by furnishing <br>them with a written copy of the instruction on possession that he <br>previously had read as part of his charge.  This instruction <br>included a passage on constructive possession.  When the <br>appellant's lawyer finally returned to the courtroom and learned <br>what had transpired, she voiced no objection to the judge's <br>handling of the note.  Shortly thereafter, the jury returned its <br>verdict. <br>     The appellant subsequently filed a motion for a new trial <br>predicated upon the jury note incident.  The judge denied the <br>motion.  Hernandez assigns error.  We discern none. <br>     The preferred practice for addressing a question from a <br>deliberating jury includes ensuring that the question is reduced to <br>writing, marking the note as an exhibit for identification, sharing <br>it with counsel, and affording the lawyers an opportunity to <br>suggest an appropriate rejoinder.  See United States v. Parent, 954 <br>F.2d 23, 25 (1st Cir. 1992); Maraj, 947 F.2d at 525; United Statesv. Akitoye, 923 F.2d 221, 225-26 (1st Cir. 1991).  Withal, this <br>practice is not the product of an ironclad rule, and the trial <br>court retains a modicum of flexibility to adjust to the exigencies <br>of particular situations.  So here:  under the unusual <br>circumstances of this case, we uphold the judge's actions <br>notwithstanding his deviation from preferred practice.   <br>     Courts must operate in an orderly fashion.  Thus, when a <br>judge sets a reasonable restriction on counsel's actions and <br>communicates it clearly, lawyers subsequently violate that <br>restriction at their peril.  See Smith v. Massachusetts Inst. of <br>Technology, 877 F.2d 1106, 1110 (1st Cir. 1989).  This case <br>illustrates the point.  The judge forewarned all the attorneys that <br>he would wait no longer than ten minutes for them to respond if <br>their presence was required.  When he received the jury note, he <br>sent a court security officer (CSO) to the magistrate's courtroom <br>to alert appellant's counsel.  The CSO made three separate trips <br>down the hall, but the attorney did not respond.  After more than <br>twenty minutes had passed, the court then acted unilaterally <br>(without consulting the prosecutor, who had been patiently awaiting <br>opposing counsel's arrival) and furnished the jurors with an <br>instruction that he previously had read to them without objection.  <br>Under the circumstances, this was a reasonable course of action.  <br>The failure to follow standard practice was not attributable to <br>judicial error, but to counsel's default.  See id. (warning that if <br>lawyers absent themselves during jury deliberations, "they take <br>their chances on what is said and done by the court in their <br>absence"). <br>     We hasten to add that, even were we prepared to hold that <br>Judge Perez-Gimenez's actions constituted cognizable error, we <br>would pronounce any such error harmless.  A party's failure <br>properly to preserve an objection to a jury instruction contained <br>in the original charge forfeits the point, and the defaulting party <br>cannot resuscitate the forfeited point by objecting to the court's <br>later repetition of the same instruction in response to a jury <br>question.  See Fan Fare, Inc. v. Fourdel Indus., Ltd., 563 F. Supp. <br>754, 756-57 (M.D. Ala. 1983), aff'd, 732 F.2d 943 (11th Cir. 1984) <br>(Table); cf. Almonte v. National Union Fire Ins. Co., 787 F.2d 763, <br>767-69 (1st Cir. 1986).  Moreover, the judge's response here hewed <br>closely "to the approximate boundaries of the jury's inquiry," <br>United States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989), and the <br>appellant, even at this late date, has pointed to no misstatement <br>of any legal principle covered in the instruction.  See, e.g., <br>United States v. Rogers, 41 F.3d 25, 30 (1st Cir. 1994) (finding no <br>error in jury instruction containing substantially similar <br>definition of constructive possession).  Consequently, we discern <br>no substantial prejudice stemming from the judge's handling of the <br>note. <br>III.  CONCLUSION <br>     We need go no further.  Although the jury's verdict is <br>oddly configured, that portion of the verdict which relates to <br>count three is amply supported by the evidence.  Because that is <br>so, and because neither the prosecutor's summation nor the judge's <br>handling of the jury note afford any basis for setting aside the <br>conviction, the judgment below must be <br> <br>Affirmed.</pre>

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