          United States Court of Appeals
                      For the First Circuit


No. 15-1010

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      LUIS YOEL DÍAZ-ROSADO,

                      Defendant, Appellant.


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

       [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Alejandra Bird López for appellant.
     Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief for appellee.


                           May 18, 2017
          KAYATTA, Circuit Judge.                  Luis Yoel Díaz-Rosado ("Díaz")

was convicted of carjacking under 18 U.S.C. § 2119.                        On appeal, he

challenges the sufficiency of the evidence on the issue of intent,

the admission of an alleged confession, the rejection of a proposed

supplemental jury instruction, and the admission of an in-court

witness identification.            For the following reasons, we affirm.

                                      I.    Background

          Although          we    recite         the   facts     relevant    to    Díaz's

sufficiency    challenge          in       the    light   most     favorable      to   the

prosecution, we "provide a more or less neutral summary" of the

facts relevant to Díaz's remaining claims, and reserve further

exposition    of    those        facts      for    our    analysis    of    the    claims

themselves.    See United States v. Flores-Rivera, 787 F.3d 1, 9

(1st Cir. 2015).

          On        March        8,        2013,       Margarita     Irizarry-Ramírez

("Irizarry")       picked    up       her    four-year-old         granddaughter       from

elementary school in Hato Rey, Puerto Rico.                    As Irizarry attempted

to buckle the child into a car seat, she sensed the presence of

somebody approaching from behind.                      When she turned around, she

found herself facing a man standing approximately five feet, six

inches tall, and wearing a dark-colored baseball cap, sunglasses,

and a dark-colored shirt.

          The man attempted to wrest Irizarry's car key from her.

In the ensuing struggle, which we describe in greater detail below,


                                            - 2 -
the man seized the key to the car.      As this altercation was taking

place, Ronald Vázquez-Rosado ("Vázquez")--a parent at the school

--tried   to   assist   Irizarry   by    attempting   to   remove   her

granddaughter from the car.        Unable to do so, Vázquez urged

Irizarry to remove her granddaughter herself while he tried to

restrain the man, who had by that point entered the driver's seat

of the vehicle.   Irizarry succeeded, Vázquez got out of the car,

and the man drove away.

          Vázquez, a former undercover police officer for the

Puerto Rico Police Department      ("P.R.P.D."), subsequently gave

chase in his own vehicle and called 911.       While on the telephone

with the 911 operator and a police officer,           Vázquez spotted

Irizarry's vehicle being driven by a man with short black hair.

Vázquez relayed this information to the operator and the officer.

Noticing that Irizarry's car had suddenly stopped, and fearful

that the man might try to engage him, Vázquez drove off and

returned to the school.

          A short time later, P.R.P.D. Agent William Méndez-Guzmán

("Agent Méndez") and his patrol partner spotted the stolen vehicle.

After a brief chase by car and on foot, Agent Méndez apprehended

the driver of the car, whom he later identified as Díaz.        Though

Irizarry had initially provided the police with a description of

the man who had taken her car, she was unable to identify Díaz in

a lineup conducted several hours later.         Vázquez was similarly


                               - 3 -
unable to identify Díaz in a photo array conducted a few days

later.

          Agent Méndez testified that after arresting Díaz, he

read Díaz his Miranda rights and took him to the local precinct.

Agent Méndez further testified that once they were at the police

station, he again advised Díaz of his Miranda rights--both verbally

and in writing--and after Díaz acknowledged by signature his

receipt of a written copy of those rights, Díaz told him that "he

wanted to testify something, to state something."     Agent Méndez

testified that he "told [Díaz] that if he had anything that he

wanted to say . . . he should write it out on the reverse side of

the [Miranda form]," and that Díaz subsequently wrote and signed

a statement that (the defendant stipulated) translates to English

as follows:

          I, Luis Yoel Díaz Rosado, belatedly repent the
          acts I committed against the lady and someone
          known to me who got into a mess that he did
          not commit. Sorry.

          Thoughtfully,
          Luis Yoel Díaz Rosado

          I took the car keys from the lady under the
          influence of substances, may God bless her.
          And I remember that the police hit the siren.

          Thoughtfully,
          Luis Yoel Díaz Rosado

          Later that night, P.R.P.D. Agent Angel Fernández-Ortega

("Agent Fernández") presented the case to Puerto Rico District



                              - 4 -
Attorney   Francelis    Ortiz-Pagán   ("D.A.   Ortiz").     D.A.   Ortiz

declined to press charges under the Commonwealth's carjacking

statute, due to concerns that Díaz's confession was not "conscious

and intelligent" under Pueblo v. Millán Pacheco, 182 P.R. Dec. 595

(2011).    Federal prosecutors subsequently charged Díaz with one

count of carjacking under 18 U.S.C. § 2119, and a grand jury

returned an indictment on this charge on March 21, 2013.

           Prior to trial, Díaz filed a motion in limine to suppress

his written confession, arguing that the confession was provided

"under the effects of controlled substances" and thus was not

voluntary. In the ensuing hearing, D.A. Ortiz testified that Agent

Fernández had informed her that Díaz had appeared to be under the

influence of drugs during the lineup, which, again, had taken place

several hours after Díaz's arrest. However, Agent Fernández denied

not only making this statement but also having the impression that

Díaz was on drugs.     Agent Méndez and another one of the arresting

officers--P.R.P.D.     Agent   Heriberto   Soto-Cruz   (“Agent   Soto”)--

similarly testified that Díaz did not appear to be under the

influence of controlled substances, and Irizarry testified that

she did not notice any of the lineup participants "acting in a

weird way physically in any way."     Though the court "f[ou]nd [D.A.

Ortiz] credible," it also determined that "the witnesses are pretty

consistent in that this gentleman was not behaving strangely."

The district court then denied Díaz's motion.


                                  - 5 -
          Part way through the subsequent trial, Díaz renewed his

motion to suppress his alleged confession on the basis of videos

filmed by his brother at the precinct house several hours after

Díaz had been brought there.     In those videos, an unidentified

male voice can be heard saying that "it looks like . . . when

[Díaz] came in, he came in too . . . way too you-know-what on

drugs," and further, that "[Díaz] said . . . that he had taken

some pills."   Díaz's brother testified that that voice belonged to

a police officer who was staffing the precinct's reception desk.

The brother also testified that Díaz "had a psychiatric history"

as well as "drug problems," and that when he saw Díaz in the

station, "[Díaz] was raising his voice, he was babbling, and his

hands were on the cell bars and he had an erratic behavior."

Nevertheless, the district court denied Díaz's renewed motion to

suppress, on the ground that the videos failed to show that Díaz

was "actually being coerced."

          During trial, the government called Vázquez to testify.

In the course of cross-examination, Díaz's attorney engaged in the

following exchange with Vázquez:

          Q: And the person was not in that photo; you
          were not able to identify any person in that
          photo spread as the person whom you had
          intervened with.

          A: At that moment I was not convinced of the
          identification of any person, but at this
          moment I am convinced of the identification of
          the person.


                                - 6 -
           Q: You are?    Please tell me.     Please tell me.

           A: What do you want me to tell you?

           Q: You said that you were now.           Please tell
           me.

           A: Yes, I am convinced that I can point out
           who is the person who carried out the
           carjacking.

           Q: Who did?

           A: The man who is seated over there behind the
           monitor.

The judge then clarified that Vázquez was referring to Díaz.

Díaz's   attorney   did   not   ask   the   court   to   strike   Vázquez's

testimony.

           On January 31, 2014, after twice denying Díaz's motions

for acquittal under Rule 29 of the Federal Rules of Criminal

Procedure, the court instructed the jury as follows:

           We're almost done.    Now let me give you an
           instruction about statements made by Mr. Díaz-
           Rosado. And you heard evidence in this case
           that Luis Yoel Díaz-Rosado made a statement in
           which the government claims to you that he
           admitted certain facts.     It is for you to
           decide whether Luis Yoel Díaz-Rosado indeed
           made that statement, based on the evidence
           presented here, and, if so, how much weight
           you give to it. In making these decisions,
           you should consider all of the elements about
           the statement including the circumstances
           under which the statement may have been made
           and any facts or circumstances tending to
           corroborate or contradict the version of
           events described in the statement.




                                  - 7 -
During the course of its deliberations, the jury sent the following

note to the district court judge:

          Pueblo V Millán Pacheco [sic] law that
          confeccion [sic] need to be concious [sic] and
          intelligent . . . aply's [sic] to the federal
          courts? Or the confeccion [sic] is acceptable
          no matter in what condition.

Díaz's attorney asked the judge to respond by telling the jury

that "the Court has admitted the confession," and "it's up to you,

the jury, to decide how much or how little you're going to believe

it."   Díaz's attorney contended that "telling [the jurors they]

don't have to concern [themselves] with [Millán] would be . . . a

misstatement of the law," insofar as "[b]oth [Millán] and federal

case law state that a confession has to be given in a freely,

voluntary manner."

          The judge opted to state the following:

          Now, you need not concern yourselves--the
          [Millán] holding. [D.A. Ortiz] mentioned it,
          I did not allow her to go into details. That
          is a case from the Puerto Rico Supreme Court.
          Now, you need not concern yourselves with that
          case. In this particular case, I, as the judge
          in the case, allowed the confession in this
          case to be presented into evidence, and you
          have the confession before you. So, I will
          give you the instruction I gave you on how to
          consider that confession as evidence in this
          case just like any other evidence. And I will
          read it to you.

After repeating his prior instruction, the judge told the jury:

          So, as I stated, I have allowed the
          confession--I admitted the confession into
          evidence. So, it is before you to consider.


                              - 8 -
            Before   the   jury     could    be    excused,    however,    Díaz's

attorney approached the bench and again "propose[d] that [the

judge] advise the jury that the confession has to be given in a

free and voluntary manner" and that "like any other piece of

evidence they are free to accept it in its totality, accept it

partially or not to accept it at all." The judge once more declined

to provide the additional instruction:

            I allowed the evidence that the suppression
            was given, you've made your arguments; and
            they can--you know, either they find it's true
            or it's a whole lie, and that's the argument
            [that] you made before the jury. But I made
            the   determination    in   the    suppression
            conference.

The judge then excused the jury.

            Shortly thereafter, the jury convicted Díaz of one count

of carjacking under 18 U.S.C. § 2119.                 Díaz was subsequently

sentenced to seventy-one months of imprisonment.

                              II.    Discussion

A.   Sufficiency of the Evidence

            We review preserved challenges to the sufficiency of the

evidence de novo.     United States v. Pena, 586 F.3d 105, 111 (1st

Cir. 2009).    However, in so doing, "we examine the evidence, both

direct and circumstantial, in the light most favorable to the

prosecution   and    decide   whether       that    evidence,    including    all

plausible   inferences     drawn    therefrom,      would     allow   a   rational



                                     - 9 -
factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged count or crime."             United States v. Cruz-

Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008).

               Díaz's   sufficiency    challenge   focuses   solely     on    the

element of intent required for a carjacking conviction under

§ 2119, and so we do as well.          The statute imposes liability upon

any individual who, "with the intent to cause death or serious

bodily harm[,] takes a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce from the

person    or    presence   of   another   by   force   and   violence    or   by

intimidation."      18 U.S.C. § 2119.     Díaz argues that because he did

not wield a weapon, make any "threatening gestures or verbal

threats," or otherwise manifest an intent to kill or cause serious

bodily harm, the evidence is insufficient to sustain a conviction

under the statute.

               "The intent requirement of § 2119 is satisfied when the

Government proves that at the moment the defendant demanded or

took control over the driver's automobile the defendant possessed

the intent to seriously harm or kill the driver if necessary to

steal the car (or, alternatively, if unnecessary to steal the

car)."    Holloway v. United States, 526 U.S. 1, 12 (1999).              Thus,

the conditional intent to cause serious harm or death can satisfy

§ 2119.    Id. at 8.




                                      - 10 -
          In our prior opinions deeming the evidence sufficient to

support a finding of intent to seriously harm another if necessary,

the defendants have, as Díaz notes, possessed items traditionally

viewed as weapons, such as guns.         See, e.g., United States v.

Melendez-Rivas, 566 F.3d 41, 45 (1st Cir. 2009); United States v.

García-Álvarez, 541 F.3d 8, 16 (1st Cir. 2008); United States v.

Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per curiam).

Nothing in the statutory language, though, requires the presence

of such an item.   Nor does common sense.   Just as one can use brute

force or a variety of items to kill or cause serious harm, one can

also use such force or items to manifest an intent to cause death

or serious harm if necessary.    See United States v. Hayworth, No.

16-5358, 2017 WL 927782, at *3 (6th Cir. Mar. 8, 2017) (unpublished

opinion) (first citing United States v. Fekete, 535 F.3d 471, 480

(6th Cir. 2008); then citing United States v. Edmond, 815 F.3d

1032, 1040 (6th Cir. 2016), vacated and remanded on other grounds

sub nom. Harper v. United States, No. 16-5461, 2017 WL 1366702

(U.S. April 17, 2017) (mem.)) (finding the evidence sufficient to

sustain a § 2119 conviction where the defendant "wrestled with"

and "jabbed" a fallen woman who was nine months pregnant).

          Here, it is undisputed that Díaz used both physical force

and the car itself to effect the heist.     So the question is:   were

Díaz's actions sufficient to support a finding that Díaz actually

intended to cause serious harm if that were necessary to steal the


                                - 11 -
car?       While the case is close, we think that the evidence is indeed

sufficient when viewed, as it must be, in the light most favorable

to the verdict.

               We have at the outset a grandmother and her grandchild,

with the latter sitting in a car seat inside a vehicle parked near

an elementary school.             A jury could certainly find that the

grandmother would not have surrendered the vehicle with the child

inside of it without offering maximum resistance.                 And Díaz showed

from the get-go that he was nevertheless prepared to overcome such

resistance.          He "grab[bed]" Irizarry's hand, "struggl[ed] with

[her]," and "push[ed] and shov[ed]" her.                Eventually, according to

Irizarry's       testimony,      Díaz    "thr[e]w       [her]   onto   the   cement

sidewalk," at which point he was able to wrest loose her car key

from her keychain.1           Irizarry's testimony is supported by that of

Vázquez,       who   stated    that     he   observed    Díaz   "struggling    with

[Irizarry], manag[ing] to overcome her and . . . throw[] her, . . .

[and] slam[] her onto the floor."              The record also shows that Díaz

put Irizarry's vehicle into gear and began to move it while she

was attempting to extricate the child from the car seat and Vázquez

was "struggl[ing]" with Díaz in the front seat.

               Viewed in combination and in the light most favorable to

the verdict, these facts are sufficient to allow a rational jury


      As a result of the altercation, Irizarry suffered scratches,
       1

cuts, and a hematoma on her left knee.


                                         - 12 -
to conclude beyond a reasonable doubt that Díaz was willing to

cause serious bodily harm in order to abscond with Irizarry's car.

We have previously indicated that the fact that a defendant "used

violence from the very beginning of the incident . . . suggest[s]

a willingness to harm the victim" within the meaning of § 2119.

United States v. Rodríguez-Adorno, 695 F.3d 32, 42 (1st Cir. 2012).

Here, Díaz not only used violence from the outset, but he also

initiated the heist in circumstances where it was virtually certain

that violence would be necessary.       Crucially, at each juncture of

the incident, Díaz did in fact employ whatever force was necessary

to accomplish his aim.      The force progressed from pushing and

pulling, to a body slam, to intentionally moving the vehicle in a

manner that, as the culminating act in an effort to separate a

desperately resistant grandmother from the car containing her

grandchild, could rationally be seen as manifesting an intent to

cause serious injury if doing so were necessary to take the car.

Because this "plausible rendition of the record" provides adequate

support for the jury's verdict, United States v. Ortiz, 966 F.2d

707, 711 (1st Cir. 1992), we conclude that the government presented

sufficient evidence to sustain Díaz's conviction under § 2119.

B.   Written Confession

          Díaz   next   argues   that   the   district   court   erred   by

admitting his confession, because the government failed to carry

its burden of proving the voluntariness of that confession.              He


                                 - 13 -
contends that because "he was under [Agent] Méndez's total and

exclusive custody and control" when he provided the statement,

"the government's inability to offer any credible affirmative

evidence"--aside   from    Díaz's   signed    Miranda   form   and   Agent

Méndez's   testimony--"warrants     an    inference   that   the   alleged

confession was involuntary."

           The problem for Díaz is that the record amply supports

the conclusion that his confession did not result from police

interrogation or coercion.      If an individual simply walks into a

police station and announces that he just robbed a bank, the

Constitution does not per se bar the government from using that

announcement against the person.          Miranda v. Arizona, 384 U.S.

436, 478 (1966).   The same is true even if the individual is in

police custody when he makes such an announcement, so long as the

police do not interrogate the individual, i.e., engage in "[a]

practice that the police should know is reasonably likely to evoke

an incriminating response," Rhode Island v. Innis, 446 U.S. 291,

301 (1980), or otherwise engage in "coercive police activity,"

Colorado v. Connelly, 479 U.S. 157, 167 (1986).

           Here, Officer Méndez testified that immediately after he

booked Díaz at the police station and administered verbal and

written Miranda warnings--the latter of which Díaz signed--Díaz

told him of his own volition that "he wanted to testify something,

to state something."      Díaz does not parry this testimony with any


                                 - 14 -
claim    that   Agent   Méndez   coerced      or   improperly    elicited       his

confession.      Rather, he contends that his confession was not

"voluntary" in the sense that his decision to speak was the result

of a drug-addled state.

            The flaw in this argument is that in this context, a

finding that a confession is not "voluntary" requires a finding of

coercive police activity, even if only in the form of a custodial

interrogation.     Id.; see also United States v. Palmer, 203 F.3d

55, 61–62 (1st Cir. 2000).           Here, there is no evidence of such

activity, and so the district court did not err in finding the

confession admissible.

            Taking a slightly different tack, Díaz points to the

general    principle    that   waivers   of    important       rights    need    be

"knowing, intelligent, and voluntary."              See, e.g., United States

v. Melendez-Santiago, 644 F.3d 54, 59 (1st Cir. 2011) (quoting

Maryland v. Shatzer, 559 U.S. 98, 104 (2010)); see also Miranda,

384 U.S. at 479.        Here, though, there was no waiver of any such

right.    The only relevant right was the Fifth Amendment right not

to be compelled to speak, and its prophylactic corollary to receive

a   Miranda     warning     before     being       subjected     to     custodial

interrogation.     Díaz makes no claim that he was interrogated while

in custody, nor does he claim that he was otherwise coerced.                    And

though the Fifth Amendment confers the "right to remain silent,"

Miranda, 384 U.S. at 479, that right simply means the right not to


                                     - 15 -
be compelled by the government into offering evidence against

oneself, see id. at 478.    Absent any evidence of such compulsion

here, and given Officer Méndez's unrebutted testimony regarding

the lack of coercion, there was no need for the district court to

find any waiver, knowing or otherwise.2

          This is not to say that evidence of Díaz's mental state

is irrelevant to his guilt or innocence.   The jury could well have

considered his alleged impairment as reason to give the confession

little or no weight.   See United States v. Feliz, 794 F.3d 123,

130–31 (1st Cir. 2015).    Díaz cites no authority, though, for the

mandatory exclusion of a volunteered confession solely because the

confessor was under the influence of a controlled substance at the

time of the confession.

          We reject, too, Díaz's complaint that the district court

never expressly stated that the confession was voluntary.    As we

have explained, the only relevant issue of voluntariness was

whether the confession was coerced by police misconduct.       The



     2 We reject Díaz's argument that the district court committed
error in its assignment of the burden of persuasion on the question
of voluntariness. Either Díaz waived this argument by agreeing
during the suppression hearing to assume whatever burden the
district court placed on him, or he failed to object to that
burden, thereby circumscribing our review to plain error.       See
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
And even if we were to assume arguendo that the district court
mixed up the burdens, our earlier determination that the confession
was voluntary precludes us from finding plain error. See United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).


                               - 16 -
court's express and supported finding that the confession was not

coerced served as a sufficient proxy for a finding of relevant

voluntariness.        See id. at 131 (citing Sims v. Georgia, 385 U.S.

538, 544 (1967)) (finding that the district court's "conclu[sion]

that the confessions were not coerced . . . was enough to provide

a sufficiently clear ruling" on the matter of voluntariness).3

               We also see no basis for concluding that the district

court     delegated    to   the    jury    the    "purely   legal    question"    of

voluntariness.        See id. at 130.            To the contrary, the district

court quite properly and expressly left to the jury only the

question of how much weight to give the confession, leaving Díaz

able to argue that it was the product of his intoxicated condition

and     thus    not    credible.          This     allocation   of     factfinding

responsibility was precisely what precedent calls for.                  See id. at

130–31.

C.    Jury Instruction

               Díaz next contends that the district court abused its

discretion      in    responding    to     the     jury’s   question    about    the

confession.      He argues in his brief that "[t]he emphasis placed on

the judge's admission of the alleged confession could be read to

instruct the jury that they must consider the confession, allowing


      3We therefore need not decide whether a failure by the
district court to make an ultimate finding of voluntariness could
be prejudicial error where on de novo review we find the confession
to have been voluntary.


                                      - 17 -
it discretion only as to whether it would be . . . given a great

deal of weight or less weight, but not that it was free to disregard

the    alleged       confession."          He    further    contends      that   "[t]he

clarifying instruction requested by the defense--you as the jury

are entitled to accept the confession or to disregard it based on

the circumstances surrounding the written statement--would have

gone a long way to correcting this impression."

                 "In determining whether a district court's refusal to

give a jury instruction is reversible error, 'we look to see

whether the requested instruction was (1) correct as a matter of

substantive         law,   (2)   not    substantially       incorporated       into   the

charge as rendered, and (3) integral to an important point in the

case.'"          United States v. Berríos-Bonilla, 822 F.3d 25, 32 (1st

Cir.), cert. denied, 137 S. Ct. 206 (2016).

                 Even   granting    Díaz    the     argument    that     his   requested

instruction was correct as a matter of substantive law,4 we agree

with       the    government     that     the    instruction       was   substantially

incorporated into the charge as rendered.5                     Díaz did not ask that

the trial judge not tell the jury that he had determined the

confession to be admissible.               The only relevant difference between


       The government argues otherwise.
       4                                   In its view, Díaz's
proposed instruction urges the jury to "make another independent
finding on the issue of voluntariness."
       5Díaz         concedes      that    the      prior   jury    instruction       was
"adequate."


                                           - 18 -
Díaz's      requested     instruction     and    the   district     court's   given

instruction is that Díaz wanted the jurors told expressly that, in

deciding how much weight to give the confession, they could opt

for no weight at all. We think that such a possibility was manifest

in the instruction that the court reread to the jurors telling

them that they were to decide how much weight to give a confession

based, among other things, on all of the circumstances in which it

was given.         The court's reminder that the jurors should treat the

evidence like all other evidence--which they must have known they

could      disregard    if   they     thought    the   confession    warranted   no

weight6--reinforced this manifest possibility.                 Accordingly, the

district court did not abuse its discretion by choosing to repeat

its prior instruction rather than using the precise language

proposed by Díaz.

D.   In-Court Identification

               Finally,      Díaz's     challenge      to   Vázquez's      in-court

identification of Díaz is hobbled by his lack of objection at trial

and, in any event, defeated by his express solicitation of the

now-challenged testimony.             In fact, the record shows that Vázquez

initially manifested reluctance to actually name Díaz, and did so

only       after   Díaz's    counsel's     repeated     requests    that   Vázquez



       Notably, the court had earlier instructed the jurors that
       6

they "may believe everything a witness says or . . . part of what
a witness says or . . . zero, nothing of what a witness says."


                                        - 19 -
"[p]lease tell [him]" who took Irizarry's car.     On this record,

Díaz cannot argue that the district court should have stricken

Vázquez's testimony, much less that it was plain error for the

court not to do so sua sponte.          See United States v. Cruz-

Feliciano, 786 F.3d 78, 89 (1st Cir. 2015) ("[A] defendant cannot

complain about the admission of testimony directly responsive to

a question posed by defense counsel.").

                        III.    Conclusion

         For the foregoing reasons, we affirm.



                  -Concurring Opinion Follows-




                               - 20 -
          TORRUELLA, Circuit Judge, concurring.     While I agree

with this opinion's analysis finding conditional specific intent

on the facts of this case, I write separately in order to emphasize

why a narrow reading of this opinion and the requirements for

specific intent are in order.

          Congress does not have the authority to criminalize any

behavior that it desires.    Rather, its power is limited, inter

alia, by the Commerce Clause.    United States v. Lopez, 514 U.S.

549, 552-53 (1995). This limitation is in place because our system

of government is a federal one.    Matters of crime control have

traditionally been reserved to the states and for good reason.

Local understandings about crime, criminal behavior and punishment

have varied, as can be seen most recently with the upsurge in

states legalizing the use of marijuana.

          The dangers inherent in overlapping jurisdiction are

evident in this case. Local police were unsuccessful in persuading

local prosecutors to bring a case against Díaz, so they appear to

have somewhat clarified their account and taken it to the U.S.

Attorney's office, who willingly took the case.        These facts

suggest the risk of abuse that this type of forum shopping affords

to the police.

          For these reasons, federal criminal statutes need to be

interpreted narrowly, to ensure that the courts are not extending

federal jurisdiction beyond the point envisioned by Congress and


                                - 21 -
intruding into realms specifically left to the Commonwealth.           Here

Congress has built at least two significant limiting features into

the elements of the offense: (1) specific intent to commit (2)

substantial injury.       I will address these in turn, taking the

latter first.

                          I. Substantial Injury

            The carjacking statute applies to anyone who "with the

intent to cause death or serious bodily harm takes a motor vehicle

that has been transported, shipped, or received in interstate or

foreign commerce from the person or presence of another by force

and violence or by intimidation, or attempts to do so."          18 U.S.C.

§ 2119.    While there is no definition of "serious bodily harm" in

the body of the statute, there is a sentence enhancement imposed

when the perpetrator actually causes "[s]erious bodily injury,"

which     itself   is   further   defined     as   "bodily   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."        18 U.S.C. § 1365(h)(3).       This level of harm

contemplated by the statute is significant, and requires more than

simply injuring or threatening to injure the victim.            There must

be an intent to cause something equivalent to "extreme physical

pain," "protracted and obvious disfigurement," or "protracted loss




                                     - 22 -
or impairment of the function of a bodily member, organ or mental

faculty."    Id.

                            II. Specific Intent

            While    the        substantial     injury     requirement        is     a

significant limiting factor on the types of cases that may be

covered by this statute, the specific intent requirement also

considerably limits its scope.             It is insufficient to prove that

substantial injury is a likely or probable result, rather the

government has to prove that the defendant specifically intended

that substantial injury would occur.               The requirement that there

be   specific   intent     to    cause    serious     bodily   injury   has    been

complicated somewhat by the Supreme Court in Holloway v. United

States, 526 U.S. 1 (1999).               There the Supreme Court held that

"[t]he   intent     requirement      of    §   2119   is   satisfied    when       the

Government proves that . . . the defendant possessed the intent to

seriously harm or kill the driver if necessary to steal the car."

Id. at 12.      This has become known as conditional intent, and it

means that the government does not have to prove that the defendant

always intended, regardless of the victim's actions, to cause

serious bodily harm.        Rather, it is enough for the government to

prove that the defendant acted with the intent to cause serious

bodily harm if such harm was necessary to effect his or her aims.

            Either because of the high level of intent required by

the statute or, perhaps more likely, because of the ubiquity of


                                          - 23 -
firearms, carjacking cases frequently involve firearms.   Holloway,

526 U.S. at 4 (firearm pointed at driver and a threat to shoot

unless the driver handed over the car keys); United States v.

Melendez-Rivas, 566 F.3d 41, 43 (1st Cir. 2009) (gun held up to

victim's face); United States v. García-Álvarez, 541 F.3d 8, 11-

12 (1st Cir. 2008) (victim was assaulted by four men possessing at

least one firearm); United States v. Matos-Quiñones, 456 F.3d 14,

16 (1st Cir. 2006) (handgun pressed against victim's back); United

States v. Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per

curiam) (loaded and cocked revolver placed against the victim's

head); United States v. Evans-García, 322 F.3d 110, 115 (1st Cir.

2003) (gun placed on the victim's head and told gun was cocked).

          Indeed, the original carjacking statute limited itself

to carjackings "committed by a person 'possessing a firearm.'"

Holloway, 526 U.S. at 5. However, the original statute was amended

in 1994 to omit the firearm limitation.        Id.   Thus, although

firearms may frequently still be present at carjackings, it seems

clear that Congress did not intend for the statute to only apply

to situations in which a firearm is present.

          This does not mean, however, that the other limitations

present in the statute were, or should be read to have been,

watered down.   Because firearms are themselves capable of causing

serious bodily injury, courts have been quick to find specific

intent to cause the same when a firearm is present.    The question


                                 - 24 -
posed by this case is what set of facts can amount to a specific

intent to commit serious bodily injury in the absence of a firearm?

            The government points to two cases that it argues suggest

that physical threats are sufficient to prove the required intent.

In United States v. Edmond, a group of carjackers succeeded in

carjacking five vehicles and attempted carjacking a sixth.                          815

F.3d 1032, 1038 (6th Cir. 2016), vacated and remanded on other

grounds sub nom. Harper v. United States, No. 16-5461, 2017 WL

1366702    (U.S.   April   17,       2017)    (mem.).      In     five   of   the   six

instances, the Sixth Circuit easily upheld the sufficiency of the

evidence    as   to   intent    because       "[t]he     intent    element    of    the

carjacking offense is satisfied at a minimum if 'a defendant

brandishes a firearm and . . . physically touches the carjacking

victim.'"    Id. at 1039 (quoting United States v. Washington, 714

F.3d 962, 968 (6th Cir. 2013)).                The attempted carjacking count

presented a closer question, however, because the jury did not

convict the defendant of the related firearm count, suggesting

that it was not necessarily convinced that there was a firearm

present at the attempted carjacking.                  Id. at 1040.       The facts of

this count are elusive.         One of the defendants attempted to steal

a car from a valet service but "[t]he valet wrestled the keys away

from [the defendant]."         Id.    The Sixth Circuit held that "the jury

reasonably could have viewed [the defendant's] physical fight with

the valet as indicative of 'intent to cause death or serious bodily


                                             - 25 -
harm.'"   Id.   In making this argument the Sixth Circuit relied on

its own prior precedent holding that "[t]he requisite mens rea can

be shown by evidence of an intent to use a knife, a baseball bat,

brute force, or any other means that indicates an ability and

willingness to cause serious bodily harm or death if not obeyed."

United States v. Fekete, 535 F.3d 471, 480 (6th Cir. 2008).

            Those courts that have not found specific intent tend to

base their holding on Holloway's finding that "an empty threat, or

intimidating bluff, . . . standing on its own, is not enough to

satisfy § 2119's specific intent element."      526 U.S. at 11.    For

example, in United States v. Bailey, the Fourth Circuit found

insufficient evidence of specific intent when the defendant jumped

in the backseat of a vehicle, pressed something cold and hard

against the neck of the driver, and then drove off in the vehicle

after the driver abandoned it in fear for his life.      819 F.3d 92,

95 (4th Cir. 2016).       The court reasoned that all of the cases

finding specific intent had evidence showing that the defendants

"threatened their victims with actual weapons, made affirmative

threatening     statements,   and/or    physically   assaulted    their

victims."    Id. at 97.   In Bailey, in contrast, the Fourth Circuit

found that by holding a hard object against the driver's neck the

defendant intended to coerce the victim, but absent evidence of an

actual weapon this could not amount to a specific intent to cause

serious harm to the victim.     Id.    Even combined with evidence of


                                   - 26 -
"generalized recklessness and desperation" the court found this

insufficient to support a finding of specific intent.          Id. at 98.

           I am willing to join the majority opinion because the

facts of this case more closely align with the threats and attempts

to use brute force identified by the Sixth Circuit above, than

they do with the "empty threat" or "bluff" identified by Holloway

and the Fourth Circuit.    Moreover, while certain forms of physical

struggle, while not necessarily indicating an empty threat or bluff

may still not rise to the level of threatening serious bodily harm,

in this case, Díaz displayed a willingness to use as much physical

force as was necessary to effectuate his aims.          His actions in

physically struggling with both Mrs. Irizarry and Mr. Vázquez do

not have the appearance of being empty threats or bluffs but rather

actual attempts to use brute force to take the car.           The acts of

violence    that   Díaz   actually    committed,   combined    with   the

continuing escalation of violence as he encountered and overcame

obstacles in taking the car, all indicate that the jury had

sufficient evidence to find specific intent to cause serious bodily

injury.    This case should not be read to indicate, however, that

we are lowering the threshold required to find specific intent.

Rather, we are merely finding, consistent with the carjacking

statute, that there are numerous ways by which serious bodily

injury may be committed.




                                     - 27 -
