United States v. Vidal-Maldonado

2013 | Cited 0 times | First Circuit | November 22, 2013

United States Court of Appeals For the First Circuit

Nos. 10-1518, 10-1534, 10-1701, 10-1708





Defendants, Appellants.


[Hon. Daniel R. Domínguez, U.S. District Judge]


Torruella, Lipez and Thompson, Circuit Judges.

Paul M. Glickman, with whom Glickman Turley LLP, was on brief for appellant Pagán-Ferrer. Lydia Lizarríbar-Masini, for appellant Morales-Rosado. Juan A. Pedrosa-Trápaga, with whom Juan A. Pedrosa Law Office, PSC, was on brief for appellant Pacheco-Cruz. James L. Sultan, with whom Jonathan P. Harwell and Rankin & Sultan, was on brief for appellant Vidal-Maldonado. Sharon M. McGowan, Attorney, U.S. Department of Justice, Civil Rights Division, Appellate Section, with whom Jessica Dunsay Silver, Attorney, and Thomas E. Pérez, Assistant Attorney General, was on brief for appellee.

November 22, 2013


TORRUELLA, Circuit Judge. A jury convicted four former

San Juan Municipal Police Department officers of charges stemming

from the excessive use of force against a citizen who was violently

beaten to death while in police custody. Appellants, now seeking

to challenge their respective convictions and sentences, raise a

number of issues on appeal, including one which requires us to

examine the relationship between the Ex Post Facto Clause of the

Constitution and the "one book" rule of the U.S. Sentencing

Guidelines. We ultimately find none of the Appellants' arguments

meritorious and thus affirm. We begin with the facts.

I. Background

In the early morning hours of July 20, 2003, José Antonio

Rivera-Robles ("Rivera") was running down the street, yelling that

he was being followed and that "they" were trying to kill him. It

was later discovered that he was under the influence of cocaine.

Two San Juan Municipal Police Department ("SJMPD") officers who

were patrolling the area spotted Rivera and got out of their patrol

car to investigate. Rivera pushed past them and stole their patrol

car, injuring the arm of the officer who tried to hold onto the car

door as Rivera sped away. The officers radioed for help and a

search for both Rivera and the patrol car began.

Rivera, meanwhile, had abandoned the car and entered a

Citgo gas station's convenience store, appearing frightened but

uninjured to those in the store. Rivera hid behind the store


counter, scaring away the store clerk, who ran outside to look for

help. Several officers who were searching for Rivera drove by the

gas station at that time, and the store clerk was able to flag them

down. When Rivera ran outside, he was confronted by Officers Ángel

González-Almeida ("González"), Marieli Torres-Rivera ("Torres"),

and Wilbert Salas-López ("Salas"), all with guns drawn. As the

officers approached, Rivera ran to and began pulling on a gas pump,

stopped, and then walked back towards the officers. González

pushed Rivera to the ground, face down, and Salas straddled him.

At this point, Sergeant Aarón Vidal-Maldonado ("Vidal"), the

highest ranking officer present and one of the four Appellants in

this case, arrived at the gas station. Vidal helped Salas handcuff

Rivera. At this point, however, instead of transporting the now-

restrained suspect to the station house, several officers began

assaulting Rivera.

Officer Elías Perocier-Morales ("Perocier") kicked Rivera

in the head and left shoulder area with such force that it nearly

knocked Salas, who was still on top of Rivera, over. Next,

Officers Carlos Pagán-Ferrer ("Pagán"), Juan Morales-Rosado

("Morales"), and José Pacheco-Cruz ("Pacheco"), the three remaining

Appellants in this case, arrived in the SJMPD's Impact Unit van.

The Impact Unit officers formed a circle around Rivera and began

kicking him with booted feet in the head and upper body while Vidal


and Salas restrained him. Some of the officers, including Pagán,

punched Rivera in the face.

Vidal eventually ordered that Rivera be taken to the

Impact Unit station house, announcing "[t]his one's mine, this

one's mine." When he arrived and exited the police car, Rivera was

barely conscious and fell to the ground. Officer Juan Monserrate

("Monserrate") kicked the still-handcuffed Rivera in the face while

Vidal looked on silently. Rivera was then carried into the

station, dropped on the floor, and had his handcuffs removed. By

this time, his breathing was labored and his face was "practically

disfigured." Someone called emergency medical services.

When the emergency responders arrived, they were told

that Rivera had been lying on the floor, unconscious, for ten

minutes. They were unable to revive Rivera, and he was declared

dead at the scene. An autopsy later indicated that Rivera had

suffered trauma injuries to approximately thirty places on his body

and had died from brain hemorrhaging. The report also stated that

cocaine was found in his system and may have contributed to the

cause of death, but the coroner later revised her report to

indicate that blunt force trauma was the cause of death. A

forensic expert agreed. A second forensic pathologist corroborated

that the victim's injuries were consistent with kicks, punches, and

blunt force trauma. In this second pathologist's opinion, the

cause of death was not cocaine. He also testified that Rivera's


facial injuries were not from a fall. A third pathologist,

however, testified for the defense that it was "a medically

reasonable probability" that the victim died because of cocaine use

and that he did not find any fatal injuries on Rivera's body.

Puerto Rico Police Department officials began an

investigation, and Vidal admitted to being at the Citgo station

that night, but he said that no one had assaulted Rivera. Pagán,

Morales, and Pacheco all claimed that they had not been at the

Citgo station at all that night. They also denied knowing how

Rivera sustained his injuries. Several years later, in 2008, the

FBI began investigating the incident. Vidal continued to claim

that no one had assaulted Rivera, and Pagán, Morales, and Pacheco

continued to claim that they were not present at the Citgo station

that night. They also denied having punched, kicked, or otherwise

assaulted Rivera. Morales denied hearing that any officers had

gone to the Citgo that night. He later repeated that statement to

a federal grand jury.

On July 8, 2008, a federal grand jury indicted Vidal,

Morales, Pacheco and Pagán (collectively, the "defendants") along

with two other SJMPD officers, Perocier and Officer Eliezer Rivera-

González, in a 17-count indictment. The latter two pled guilty and

became cooperating witnesses. Vidal, Morales, Pacheco, and Pagán

were indicted for depriving Rivera of his constitutional rights by

using excessive force resulting in bodily injury or death while


acting under color of state law, in violation of 18 U.S.C. § 242.

They were also indicted for making false statements, in violation

of 18 U.S.C. § 1001, and for obstructing justice, in violation of

18 U.S.C. § 1512(b)(3).

On August 13, 2009, after twenty-six days of trial, a

jury found all four defendants guilty of making false statements

and obstructing justice. Morales was convicted of perjury before

the grand jury, in violation of 18 U.S.C. § 1503(a). As to the

civil rights charges, the jury found Morales and Pagán guilty of

depriving Rivera of his rights and causing bodily injury. Vidal

was found guilty of causing Rivera's death by failing to intervene

and failing to keep Rivera from harm by officers under his

supervision, in violation of 18 U.S.C. § 242. Vidal was also

charged with kicking Rivera at the Impact Unit station house, in

violation of 18 U.S.C. § 242, but he was found not guilty as to

that count. Pacheco was found not guilty of using excessive force

resulting in injury or death.

Vidal was sentenced to 360 months of imprisonment,

Morales and Pagán to 120 months of imprisonment, and Pacheco to 57

months of imprisonment.

On appeal, defendants collectively have presented a total

of eight issues which they believe warrant vacating their

respective convictions or sentences: 1) the denial of a motion to

supplement the record; 2) the denial of a motion to declare a


mistrial; 3) the denial of a motion to suppress an identification;

4) the insufficiency of the evidence; 5) the improper wording of a

jury instruction; 6) the existence of a material variance; 7) the

wrongful application of a revised Sentencing Guidelines manual; and

8) the denial of a downward departure at sentencing. Not every

defendant asserts every claim. For the sake of clarity, we

elaborate on the facts relating to each issue on appeal separately,

and we take each issue in turn.

II. Discussion

A. Denial of Rule 10(e) motion to supplement the record

Defendants Pagán and Vidal argue that the district court

erred in denying their joint motion to supplement the record on

appeal pursuant to Federal Rule of Appellate Procedure 10(e) ("Rule

10(e)"). We begin with a review of the factual and procedural

background related to this claim.

1. Background

On August 2, 2011, while this appeal was pending, Pagán

and Vidal filed with the district court a joint motion seeking to

supplement the record on appeal pursuant to Rule 10(e). Pagán and

Vidal argued that at least some portion of the jury selection

proceedings were closed to the public and that the record did not

clearly reflect that fact. Accordingly, they sought to conform the

record to reflect what truly occurred below or, alternatively, to

supplement the record to correct a material omission regarding the


closure. They also claimed that an evidentiary hearing was


As record evidence of possible closure, Pagán and Vidal

cited statements by the district court judge during a portion of

the jury selection proceedings:

The Court is celebrating this hearing here in the jury room, since the Court is aware that we cannot ask the questions in the courtroom because an answer by a person, a petit juror, a potential petit juror, could potentially contaminate the entire panel and consequently the parties have all agreed to hold this phase of the jury selection here in the jury room. . . . .

They also provided affidavits from Pagán, Pagán's trial attorney,

Vidal, and family members of both men stating that the public had

been excluded from jury selection proceedings and that, at various

times, officers of the court or the defense attorneys instructed

family members that they could not attend portions of the jury

selection proceedings. Critically, the affidavits also reveal that

counsel for both Pagán and Vidal were aware of the alleged closure

at the time it occurred, discussed the closure issue with their

clients, and elected not to object to the closure.1 Pagán and

Vidal concluded by requesting that the district court hold a

hearing on the question of whether the jury selection proceedings

1 The affidavits also assert that neither Pagán nor Vidal were informed by counsel of their constitutional right to a public trial, but no ineffective assistance of counsel claims have been brought forth by either defendant in this direct appeal.


were open or closed, and that it correct the record to accurately

reflect the nature of the proceedings.

The district court, in an order by the same judge who had

presided over the jury selection proceedings in question, denied

the joint motion without holding a hearing. After noting that Rule

10(e) allows a trial court to consider a dispute as to the record

even while an appeal is pending, it explained that the request in

this case was "untimely."2 Specifically, the district court viewed

the defendants' request as an impermissible attempt to add new

information to the record, and it expressed concern that granting

the motion would allow defendants to sandbag the courts with issues

that should have been raised during trial while the trial judge had

an "opportunity to rectify the alleged wrong."

2. Applicable Law and Analysis

Federal Rule of Appellate Procedure 10(e)(1) states, in

pertinent part, "[i]f any difference arises about whether the

record truly discloses what occurred in the district court, the

difference must be submitted to and settled by that court and the

2 Although the district court characterized the Appellants' Rule 10(e) request as "untimely," the court clearly explained that "Appellate Rule 10(e) authorizes the trial court to correct or modify the record on appeal when a dispute arises regarding that record. The trial court may consider the dispute even after the record has been transmitted to the appellate court." Order at 2, Aug. 26, 2011, ECF No. 557 (internal quotation marks omitted) (quoting In Re Food Fair, Inc., 15 B.R. 569 , 571 (Bankr. S.D.N.Y. 1981)). In other words, the court clearly recognized that if the Rule 10(e) motion had been proper, it would have been timely filed even though Appellants had already filed a notice of appeal.


record conformed accordingly." Fed. R. App. P. 10(e)(1).

Significantly, the rule requires that the district court settle the

matter, not that it hold an evidentiary hearing. United States v.

Brika, 416 F.3d 514 , 530 (6th Cir. 2005). Federal Rule of

Appellate Procedure 10(e)(2) adds that "[i]f anything material to

either party is omitted from or misstated in the record by error or

accident, the omission or misstatement may be corrected and a

supplemental record may be certified and forwarded." Fed. R. App.

P. 10(e)(2).

We review the district court's denial of a Rule 10(e)

motion for abuse of discretion. Brika, 416 F.3d at 529; see also

United States v. Kelly, 535 F.3d 1229 , 1242 (10th Cir. 2008);

United States v. Franklin, 250 F.3d 653 , 663 (8th Cir. 2001).

"When a dispute concerning whether the record truly discloses what

occurred in the district court has been submitted to the district

court, the court's determination is conclusive absent a showing of

intentional falsification or plain unreasonableness." United

States v. Serrano, 870 F.2d 1 , 12 (1st Cir. 1989) (internal

citations and quotation marks omitted); see also Brika, 416 F.3d at


According to Pagán and Vidal, the district court abused

its discretion when it denied their Rule 10(e) motion without an

evidentiary hearing because the record suggests, but does not

unequivocally show, that the jury selection was at least partially


closed to the public. They argue further that the denial of their

10(e) motion prevents them from having a complete record to be able

to brief this court on the closure issue. We disagree.

As the district court correctly observed, Rule 10(e) is

a mechanism by which the court can "correct omissions from or

misstatements in the record for appeal." Order at 2, Aug. 26,

2011, ECF No. 557 (citing S & E Shipping Corp. v. Chesapeake & O.

Ry. Co., 678 F.2d 636 , 641 (6th Cir. 1982)). The Rule does not,

however, "allow the court to add to the record on appeal matters

that might have been but were not placed before it in the course of

the proceedings . . . ." United States v. Hillsberg, 812 F.2d 328 ,

336 (7th Cir. 1986); see also Anthony v. United States, 667 F.2d

870 , 875 (10th Cir. 1980) (holding that 10(e) motion to supplement

the record must be denied where appellant knew of but failed to

introduce the relevant evidence at trial because Rule 10(e) "does

not grant a license to build a new record"). In this case, the

district court denied the Rule 10(e) motion because it "saw no

need" to supplement the record with what it characterized as

untimely or new information not within the purview of Rule 10(e).

A review of the record supports the reasonableness of the

district court's finding that neither a hearing nor supplementation

to clarify the record was necessary in this case. Despite Pagán

and Vidal's assertions that the record is unclear on the status of

the jury selection proceedings, the transcripts clearly delineate


the events below. On June 10, 2009, after polling potential

jurors, the district court was alerted to the fact that multiple

jurors had prior knowledge of the case at hand. The court then

elected to question each juror individually on the issue, and it

discovered that some jurors had read or discussed a recent

newspaper article describing the guilty plea of a co-defendant in

the case. Concerned about possible contamination, the judge --

with the assistance of defense counsel -- sought to discover what

each juror had heard and from whom the juror had heard it.

The court held these individual juror interviews in the

jury room, not the courtroom, in the presence of defense counsel

and their clients. The transcripts explicitly mark when the

proceedings shifted to the jury room with an "Examination in the

jury room" notation, Tr. of Trial Voir Dire 51, June 10, 2009, and

they also mark when the proceedings returned to open court, with a

parenthetical notation that "[t]he following proceedings were had

in open court," id. at 145. Counsel for Pagán did request a

sidebar with the judge immediately prior to the jury room voir

dire, but it was not to object to the closure of jury selection

proceedings; rather, he requested only that the court ask more

explicit questions regarding contamination of the entire pool

before moving to the jury room for individual examinations. The

court readily obliged. In fact, the judge commented that trial

counsel for Pagán had "taken the lead on this" and that it had no


objection if defense counsel wished to "continue suggesting to the

Court questions relating to the potential contamination of these

three jurors by outside information," during the jury room

proceedings. Id. at 51. The judge also provided time for counsel

to speak with him about the jury selection procedures before the

individual jurors were sent to the jury room for questioning.

Again, no one objected to conducting the questioning in the jury


The following day, on June 11, the transcript also

clearly states that individual jurors were being questioned about

possible contamination within the confines of the jury room. The

district court judge, immediately after asking the clerk to call

the case, stated the following:

The Defendants are present here in the jury room since this procedure, it is best to hold it. And the Defendants are assisted by the official translator of the Court. The Court is celebrating this hearing here in the jury room, since the Court is aware that we cannot ask the questions in the courtroom because an answer by a person, a petit juror, a potential petit juror, could potentially contaminate the entire panel and consequently the parties have all agreed to hold this phase of the jury selection here in the jury room, the defendants being present.

Tr. of Trial Voir Dire 2, June 11, 2009 (emphasis added). Once

again, the record shows that the defendants did not object to

holding the contamination-related jury selection proceedings in the

jury room; in fact, they "all agreed" to it.


The affidavits offered in support of the Rule 10(e)

motion also reflect the parties' contemporaneous knowledge of

closure and their decision to agree to it. Pagán's trial counsel

stated that Pagán's family members, who he alleges were kept out of

jury selection proceedings, repeatedly asked him if they could

enter during jury selection, and that Pagán told him several times

that he wanted his family members in the courtroom during jury

selection. Pagán's counsel, however, told them that family members

could not observe the proceedings and decided not to raise the

issue with the court because he believed such an objection to the

closure would be "counterproductive and futile." Vidal's affidavit

similarly reveals that he discussed with his lawyer -- on the first

day of jury selection -- his concern about the closure of jury

proceedings, but his lawyer elected not to object to the closure.

In other words, Pagán and Vidal admit that both they and their

trial counsel were fully aware of closure concerns, but counsel

consciously and purposefully chose to remain silent on the issue of

closure and to acquiesce to the proceedings.

Now, Pagán and Vidal seek to capitalize on that same

silence, suggesting that the resulting record lacks clarity on the

issue of closure and that an evidentiary hearing is required. Rule

10(e), however, authorizes the modification of the record only to

the extent it is necessary to "truly disclose[ ] what occurred in

the district court." United States v. Kennedy, 225 F.3d 1187 , 1191


(10th Cir. 2000). Rule 10(e) is not a vehicle for parties to raise

a belated challenge to the course of proceedings below. See

O'Connor v. Pierson, 426 F.3d 187 , 195 n.1 (2d Cir. 2005) ("What

the [party] sought was in fact a remand for the opportunity to

raise the claim-preclusion defense for the first time in the

district court. This [party's] failure to raise the defense is not

the sort of 'error or accident' contemplated by Federal Rule of

Appellate Procedure 10(e)(2). . . ."). Nor is Rule 10(e) an

appropriate means for a party to "put[] additional evidence, no

matter how relevant, before the court of appeals that was not

before the district court." United States v. Rivera-Rosario, 300

F.3d 1 , 9 (1st Cir. 2002).

Here, like the appellant in Rivera-Rosario, Pagán and

Vidal seek to push Rule 10(e) beyond its bounds. Despite their

claim of confusion, the record clearly documents the jury selection

proceedings below, both when they were moved to the jury room and

when they returned to open court. Additionally, the proffered

complaints that family members were being kept from proceedings

were not "omitted from . . . the record by error or accident," see

Fed. R. App. P. 10(e)(2), but rather were kept from the trial court

by choice of counsel. Accordingly, though we would have preferred

a more comprehensive discussion of the Rule 10(e) motion's

shortcomings from the district court in this case, we cannot find

that the district court abused its discretion when it denied the


motion on the grounds that there was "no need to supplement the

record" with such new material not permitted by Rule 10(e).

We therefore affirm the district court's denial of the

joint Rule 10(e) motion. This holding, of course, does not prevent

Pagán or Vidal from seeking post-conviction relief from the

district court as to any potential constitutional claims underlying

their Rule 10(e) motion.3

B. Denial of motions for a mistrial

Morales, Pagán, and Vidal each argue that the district

court erred in denying their motion for a mistrial. We begin once

again with a review of the relevant facts.

1. Background

At trial on July 1, 2009, Torres testified as a witness

for the government. She spoke in Spanish and her testimony was

simultaneously translated into English. When asked on direct

examination why, after previously withholding information about her

colleagues' conduct at the gas station, she was now testifying

against her fellow officers, Torres replied: "Because this time I

already knew that the truth would come out because the civil trial

3 Pagán and Vidal have not requested that we rule on the merits of their underlying Sixth Amendment claim of improper closure. In fact, they have asserted that they were not able to fully present the constitutional claim on appeal due to uncertainty in the record. While we are unpersuaded by Appellants' arguments as to the clarity of the record, we decline to press on to an analysis of the merits of a constitutional claim that is not squarely before us.


was over . . . ." Counsel for Pagán immediately objected,

interrupting the translation of the remainder of Torres's sentence,

which in Spanish had concluded "and that they had won the suit

against the Municipality of San Juan." Counsel for Pagán moved for

a mistrial, and the court excused the jury to hear argument on the

issue. After some discussion, the district court requested

briefing on the subject. The court recessed for the day fifty

minutes early, and it reminded the jury that they would reconvene

on July 13 after a previously scheduled and previously announced


When trial resumed on July 14,4 the district court

announced in court and in a subsequently issued written order that

it was denying the defendants' request for a mistrial and granting

the government's motion for a curative instruction. The court

stated that it was operating under the assumption that the jury had

understood the entirety, including the untranslated portion, of

Torres's testimony. It nevertheless determined that this was not

a case of "extreme prejudice," and that the jury could be counted

on to follow the court's instructions. After soliciting and

incorporating feedback from defense counsel on the court's proposed

curative instruction, it instructed the jury, in relevant part, as


4 The resumption of trial was delayed an additional day, until July 14, to allow for jury selection in an unrelated case.


[Y]ou may have heard the current witness on the stand, Sergeant Marieli Torres Rivera, reference a prior civil trial and the result thereof. You should not, however, concern yourself with anything relating to that civil trial. . . . The prior civil trial mentioned by Sergeant Torres Rivera . . . involved different Defendants and different parties, different legal issues and a different burden of proof for the Plaintiffs. . . . . The standard of proof in a civil case is merely the preponderance of the evidence as opposed to the Government requiring to prove all the elements of the counts of the indictment beyond a reasonable doubt. Further, Defendants were not represented by counsel, as they were not a party and, hence, did not cross-examine or have the opportunity to present any evidence, if they so chose, in the civil case. Finally, the Court reminds you that at the beginning of the case you were ordered that, and I quote, 'testimony that the Court has excluded and told you to disregard is not evidence and must not be considered,' end of quote. The Court strikes testimony of Sergeant Torres Rivera's reason for changing her testimony, and the existence and result of a civil case, and you are strictly ordered not to consider under any circumstances said testimony about the case. . . . . [I]t would be entirely improper and in violation of your oath for you to consider the existence and the outcome of the civil trial wherein Defendants were not parties in your deliberations.

This instruction was delivered to the jurors immediately upon their

return on the first day of trial after the recess.


2. Applicable Law and Analysis

In the event that the jury has been exposed to improper

evidence, the trial court must strike the evidence and provide an

appropriate curative instruction unless the evidence was so

"seriously prejudicial" that "a curative instruction will be an

insufficient antidote." United States v. Sepúlveda, 15 F.3d 1161 ,

1184 (1st Cir. 1993). "Declaring a mistrial is a last resort, only

to be implemented if the taint is ineradicable . . . ." Id. When

reviewing the denial of a motion for a mistrial, "we consider the

totality of the circumstances to determine whether the defendant

has demonstrated the kind of 'clear' prejudice that would render

the court's denial of his motion for a mistrial a 'manifest abuse

of discretion.'" United States v. Dunbar, 553 F.3d 48 , 58 (1st

Cir. 2009) (quoting United States v. Freeman, 208 F.3d 332 , 339

(1st Cir. 2000)). Essential to this determination are the

following three factors: 1) whether an appropriate curative

instruction was issued, 2) whether the judicial response was

timely, and 3) whether appellants successfully rebutted the

presumption that the jury followed the judge's instructions. See

Sepúlveda, 15 F.3d at 1185.

We begin by considering whether the court issued an

appropriate curative instruction. Appellants contend that the

court's instruction magnified rather than remedied the risk of

prejudice because it reinforced or vouched for Torres's testimony,


at least in so far as it confirmed the existence of a related civil

case. Appellants reason that as a result, the jurors could have

inferred that the successful "suit against the Municipality of San

Juan" was in fact a jury verdict against the police force premised

on the same facts as the criminal case at hand.

Although we recognize the potential for a prejudicial

inference, even if a juror made the inferences Appellants suggest,

however, the court's forceful curative instruction expressly dealt

with precisely these concerns. In the instruction, which neither

repeated the improper testimony nor reminded the jury of the civil

trial's outcome, the court repeatedly stated that the defendants

were not involved in the civil trial that Torres had mentioned.

Additionally, the court emphasized that "[t]he [civil] case

involved . . . different legal issues and a different burden of

proof for the Plaintiffs," and it repeated three times that the

jurors must not consider any testimony about the civil trial in

their deliberations. We therefore find that the curative

instruction that the court gave was worded appropriately to remedy

any prejudicial effect of Torres's testimony.

Turning next to the issue of timeliness, Appellants argue

that even if the instruction was appropriate, its issuance was too

delayed to remedy the prejudicial effect of Torres's statement.

Appellants note that thirteen days passed between Torres's

testimony on July 1 and the court's curative instruction on


July 14. Certainly, "[s]wiftness in judicial response is an

important element in alleviating prejudice once the jury has been

exposed to improper testimony," id., and "court[s] should proceed

with the trial after instructing the jury to disregard the

evidence," id. at 1184 (emphasis added). However, we have not

held that an instantaneous instruction is necessary in all

instances. See United States v. Genteles, 619 F.3d 74 , 82 (1st

Cir. 2010) (affirming denial of motion for mistrial where court

"did not give a curative instruction immediately following the

[improper] remark" but did so during its final instruction to the

jury); United States v. Maccini, 721 F.2d 840 , 847 (1st Cir. 1983)

("Waiting until the next day to give these instructions did not

prejudice the defendant. If anything, the lapse of time aided in

allowing the jury to forget what, in the context of a six-day

trial, is a de minimis incident.").

In this case, the court elected to recess fifty minutes

early on July 1 so that the parties could provide briefing on the

mistrial issue before the court proceeded with trial. The court

then reviewed the briefs, determined a curative instruction was

appropriate, and delivered that instruction immediately upon the

resumption of trial, which happened to follow a pre-scheduled

recess of thirteen days. The court had previously informed the

jury of the recess, and it reminded the jury of the reason for the

delay in trial immediately after delivering the curative


instruction. In these particular circumstances, we find that the

judicial response to the improper testimony was sufficiently


Finally, Appellants argue that the presumption that the

jury follows the judge's instructions cannot apply here, and that

no curative instruction could have remedied the extreme prejudice

caused by Torres's testimony. Appellants assert that Torres's

testimony was likely considered authoritative because she was a law

enforcement officer and it went to the central issue at trial by

suggesting that the police department had been found responsible

for Rivera's death. As such, they contend, no juror could have

ignored the testimony as instructed.

Although Appellants' argument on this point is not wholly

without merit, on these facts, it fails for a number of reasons.

First, Torres's passing reference to a civil case did not identify

the claims at issue in the civil trial. Nor did Torres state that

any of the Appellants had been found liable for any injury to

Rivera. In fact, Torres did not identify any of the Appellants as

parties to the civil suit. Appellants' assertion that the jury

likely inferred that the Appellants were guilty because a civil

trial had been decided against different defendants on different

issues is thus not persuasive. Cf. United States v. Rullán-Rivera,

60 F.3d 16 , 19-20 (1st Cir. 1995) (affirming denial of motion for

mistrial that "rests exclusively on the conclusory assertion that


the jury could have inferred that [appellant] was guilty because

his codefendant absconded" during trial, where court gave

appropriate instruction)(emphasis omitted). Second, Appellants

ignore the fact that "within wide margins, the potential for

prejudice stemming from improper testimony or comments can be

satisfactorily dispelled by appropriate curative instructions."

Sepúlveda, 15 F.3d at 1184.

Third, to overcome the presumption that jurors follow the

court's instructions, Appellants were required to show a

probability that "responsible jurors will be unable to disregard

the testimony," and "the testimony likely will have a seriously

prejudicial effect." United States v. Bradshaw, 281 F.3d 278 , 285

(1st Cir. 2002). "Whether or not a jury can be expected, under

proper instructions, to disregard particular evidence is a judgment

call, and one as to which appellate courts typically cede a high

degree of deference to the trial court." Id. at 284. Here, the

district court found no reason to depart from the presumption that

the jurors would follow its strong curative instruction, and

neither do we. As the district court properly noted, Appellants

were unable to show that the testimony was likely to have a

seriously prejudicial effect. Torres was the eleventh witness for

the government and the fifth to describe the events at the gas

station. Her passing reference to a civil trial against different

defendants constituted a single sentence of testimony delivered


near the mid-point of a twenty-six-day trial spanning roughly two

months. Considering the sufficient record evidence to support

Appellants' convictions, discussed at further length below, it is

difficult to attribute any prejudicial effect to Torres's

testimony. In fact, the jury acquitted Pacheco on the charge of

using excessive force resulting in injury or death, and it

acquitted Vidal on the count of assaulting Rivera at the police


We therefore find that the district court did not abuse

its discretion when it denied the motion for a mistrial and instead

issued an appropriate curative instruction.

C. Denial of motion to suppress identification

Pagán contends that the district court erred in denying

his motion to suppress an in-court identification. A brief sketch

of the relevant facts follows.

1. Background

On June 23, 2009, the government informed the court that

it had met recently with Salas to review his testimony in

preparation for trial. At that meeting, Salas volunteered that he

could identify the man whom he had observed hitting Rivera at the

gas station on July 20. Salas explained that he had seen Pagán

entering the courthouse a few days earlier, and he recognized him

as the same man who had beaten Rivera. Defense counsel objected to

any in-court identification by Salas, arguing primarily that it was


impermissibly suggestive because no lineup had been conducted prior

to trial.

On June 25, first during an evidentiary hearing and then

again in front of the jury, Salas testified that he was 100 percent

certain that Pagán was the man he saw punching a handcuffed Rivera

in the face while at the gas station on July 20, 2003. He

explained that although he did not know his name, he had seen Pagán

at work four or five times prior to that night, he had seen him

five or six times subsequently, and he recognized him yet again

when he was entering the courthouse. Salas also stated that in

their prior encounters, the two men had, on occasion, greeted each

other briefly, exchanging "hellos" and handshakes.

Salas admitted that the sworn statement he composed

shortly after the incident did not include a description of Pagán

or his actions that night. He did not mention Pagán to

investigators until his second interview with the FBI in March

2008, at which point he described him as a man around six feet one

inch tall, white, husky, with a military-style haircut and wearing

an Impact Unit uniform. Salas stated that he saw this tall, husky

man at the gas station twice that night: first for a few seconds

after Salas finished handcuffing Rivera, and again for a few

seconds while the man was punching Rivera in the face. When

testifying before a grand jury, Salas noted that he believed he

could pick the man he had seen out of a photo lineup. However, the


government never asked Salas to attempt such a pre-trial


The district court evaluated Salas's testimony and

concluded that even if the identification was impermissibly

suggestive, it was sufficiently reliable as a matter of law so that

it could be presented to the jury for evaluation of its weight and

credibility. Pagán's motion to suppress was denied.

2. Applicable law and analysis

Our review of the denial of a motion to suppress an

identification is plenary, but we review the district court's

factual findings for clear error. United States v. Rivera-Rivera,

555 F.3d 277 , 283 (1st Cir. 2009); United States v. Brennick, 405

F.3d 96 , 99 (1st Cir. 2005). We note at the outset that

identifying evidence may only be suppressed "in extraordinary

circumstances," and we "will affirm a district court's denial of a

suppression motion if any reasonable view of the evidence supports

it." Rivera-Rivera, 555 F.3d at 282.

To determine if extraordinary circumstances require

suppression of an identification, we follow a two-step approach.

First, we must consider whether the method of identification was

impermissibly suggestive, and if so, we must determine if the

identification was nevertheless sufficiently reliable. Id. Here,

the district court assumed for the sake of argument that the


identification was impermissibly suggestive, and it proceeded to

the reliability analysis. We shall do the same.

Five factors bear on the reliability of an identification

for purposes of admissibility: 1) the witness's opportunity to

view the suspect; (2) the witness's degree of attention; (3) the

accuracy of the witness's description prior to the identification;

(4) the witness's level of certainty; and (5) the length of time

between the sighting and the identification. Rivera-Rivera, 555

F.3d at 284. As the district court noted, Salas observed Pagán on

two occasions at the gas station on July 20, 2003. While each

viewing was brief, lasting only several seconds, the two men were

in close proximity. Cf. United States v. De León-Quiñones, 588

F.3d 748 , 754-56 (1st Cir. 2009) (finding sufficient reliability

where witness "looked at [the defendant] for three seconds before

he told her to look away"). Moreover, this was neither the first

nor the last time that Salas saw Pagán. The men had seen each

other four or five times prior to the incident while at work, and

Salas encountered him afterwards another five or six times, each

time recognizing him as the tall, husky officer from July 20. Cf.

United States v. Recendiz, 557 F.3d 511 , 526 (7th Cir. 2009)

(finding in-court identification sufficiently reliable in part due

to witness's familiarity and repeated encounters with defendant

prior to trial). In these circumstances, Salas had sufficient

opportunity to view Pagán.


Salas did not testify specifically as to his degree of

attention on July 20, but his description of Pagán was accurate.5

Moreover, Salas testified that he was "100 percent certain" that

Pagán was the man he saw at the gas station on July 20, despite the

fact that Pagán had gotten "somewhat fatter" and was now wearing

glasses. Finally, we note that over five years passed between the

events on July 20 and Salas's in-court identification of Pagán.

However, we have previously upheld the admission of an

identification with an even longer, nearly seven-year span between

sighting and identification where other reliability criteria were

sufficiently persuasive. United States v. Flores-Rivera, 56 F.3d

319 , 331 (1st Cir. 1995). Here, where Salas had a number of

opportunities to view Pagán before, during, and after the incident,

provided an accurate description, and testified that he was 100

percent certain about his identification, we cannot find that the

district court erred in admitting the identification.

5 Pagán contests the accuracy of Salas's description in a single sentence, arguing that it was too general to be accurate as compared to a description in Neil v. Biggers, 409 U.S. 188 , 200 (1972). Biggers does not help Pagán, however, as the Court there noted that the witness's description in that case was "more than ordinarily thorough," not the benchmark by which all other descriptions must be measured. Id. In Manson v. Braithwaite, 432 U.S. 98 , 115 (1977), the Court deemed reliable a description with a similar degree of generality as the one Salas provided.


D. Sufficiency of the evidence

Morales, Pacheco, and Vidal each challenge the district

court's denial of their motions for judgment of acquittal due to

insufficient evidence. We review the denial of a Federal Rule of

Criminal Procedure 29 ("Rule 29") motion for judgment of acquittal

de novo. United States v. Cruzado-Laureano, 404 F.3d 470 , 480 (1st

Cir. 2005). In so doing, we examine the evidence in the light most

favorable to the government, taking all reasonable inferences in

its favor, and we ask whether a rational factfinder could have

found the defendant guilty beyond a reasonable doubt. United

States v. Angulo-Hernández, 565 F.3d 2 , 7 (1st Cir. 2009).

Accordingly, "[d]efendants challenging convictions for

insufficiency of evidence face an uphill battle on appeal." United

States v. Lipscomb, 539 F.3d 32 , 40 (1st Cir. 2008) (internal

quotations and citations omitted).

We address each Appellant's arguments in turn.

1. Morales

Morales argues on appeal that the evidence was

insufficient to support a guilty verdict as to Count One, the civil

rights charge. Count One of the indictment charged Morales and

other officers with, while acting under color of law, kicking,

punching, and otherwise assaulting Rivera, thereby willfully

depriving him of the right to be free from the use of unreasonable


force in violation of 18 U.S.C. §§ 242 and 2.6 Section 242

provides for an enhanced sentence if the civil rights violation

results in bodily injury or death. In Morales's case, the jury

found him guilty of causing bodily injury but not guilty of causing

Rivera's death.

Morales contends that the government failed to prove

beyond a reasonable doubt that he deprived Rivera of the right to

be free from the unreasonable use of force or that he aided and

abetted others in doing so. He suggests that the only evidence of

his guilt came from the testimony of a single cooperating

defendant, González. He correctly notes that neither Salas nor

Torres testified that they saw Morales at the gas station. Morales

further argues that González's uncorroborated testimony that he saw

Morales kick Rivera two or three times at the gas station could not

be credited because he failed to mention Morales in his first

interview with the FBI.

Morales's argument lacks merit. In short, he asks us to

find that no reasonable juror could have credited González's

testimony that he saw Morales kicking Rivera. We have long held,

however, that "[i]n passing upon challenges to the sufficiency of

the evidence, we are bound to refrain from making independent

judgments as to the credibility of witnesses." United States v.

6 18 U.S.C. § 2 provides liability as a principal for one who aids and abets the commission of an offense against the United States.


Ortiz de Jesús, 230 F.3d 1 , 6 (1st Cir. 2000) (unpublished). We

have no basis for disturbing the jury's credibility judgments in

this case. A reasonable juror could well have credited González's

testimony over that of a friend of Morales who claimed he did not

see him, and much of González's testimony was consistent with that

of Salas and Torres who similarly observed Impact Unit officers

kicking Rivera. Accordingly, the evidence at trial, viewed in the

light most favorable to the government, sufficed to support

Morales's conviction on Count One.

2. Pacheco

Pacheco challenges his convictions under Counts Seven and

Twelve, which charged him with making a material false statement to

a federal agent, in violation of 18 U.S.C. § 1001, and obstructing

justice, in violation of 18 U.S.C. § 1512(b)(3), respectively. The

jury acquitted Pacheco of Count One, the civil rights charge, which

Pacheco suggests is evidence that the jury believed his claim that

he was not at the gas station during the incident on July 20. If

the jury believed Pacheco's alibi, he argues, it could not have

convicted him on Counts Seven and Twelve, since his alleged false

statements were that he was not at the gas station and that he had

no knowledge about the incident.7

7 Puzzlingly, Pacheco dedicates a substantial portion of his brief to argue that the evidence at trial was insufficient to convict him of a § 242 civil rights violation, an offense for which Pacheco was not, in fact, convicted. To the extent that Pacheco may be suggesting that a conviction on the civil rights count was a


A review of the evidence quickly reveals that Pacheco's

argument does not hold water. At trial, the government offered

evidence that Pacheco, himself a police officer, told Puerto Rico

police investigator Rufino Dávila Pérez and FBI Agent Luis Rivero

that he had been with Morales and Pagán in the Impact Unit van,

searching for the stolen police vehicle, on July 20. He claimed

that he never went to or stopped by the gas station during the

incident, that he remained at the site of the recovered patrol car,

and that he had no idea how Rivera came to be injured. Salas,

however, testified that he was "100 percent sure" that he saw

Pacheco -- with whom Salas was personally familiar -- at the gas

station during the incident on July 20, in direct contradiction of

Pacheco's statements. Additionally, multiple witnesses placed the

Impact Unit van -- in which Pacheco claimed to be riding -- at the

gas station along with Pagán and Morales, whom Pacheco had claimed

were with him searching for a police vehicle elsewhere at the time.

From this evidence, a reasonable juror could easily

conclude that Pacheco lied to investigators about his alibi,

actions, and knowledge of the events of July 20. In sum, the

evidence was clearly sufficient to support Pacheco's convictions on

the obstruction of justice and hindering a federal investigation


prerequisite to convicting him on the obstruction and false statement offenses, this line of argument finds no support in the law and is swiftly rejected.


Pacheco protests, arguing that the convictions are

inconsistent with his acquittal on Count One and thus must be

reversed. Although "[c]onsistency in the verdict is not

necessary," Dunn v. United States, 284 U.S. 390 , 393 (1932), there

is no inconsistency here. The elements of the § 242 violation, of

which Pacheco was acquitted, are distinct from those of Counts

Seven and Twelve.8 Accordingly, the jury could well have found

insufficient evidence to convict Pacheco on the civil rights charge

while still finding beyond a reasonable doubt that Pacheco lied to

investigators about where he was and what he knew regarding the

assault on Rivera.

Pacheco's final argument is that even if the jury had

evidence that he lied about his location or knowledge, the

government still failed to show that he had the requisite intent to

8 Count Seven required that the government prove Pacheco knowingly and willfully made a statement that was false, material, and made in a matter within the jurisdiction of a federal agency. United States v. Notarantonio, 758 F.2d 777 , 785 (1st Cir. 1985). Count Twelve required proof that Pacheco knowingly engaged in "misleading conduct toward another person, with intent to . . . hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512(b). In contrast, Count One required that the government prove that Pacheco: 1) acted under color of law, 2) deprived Rivera of a constitutional right, 3) acted willfully, and as a result, 4) Rivera suffered bodily injury. See 18 U.S.C. § 242. Thus, the jury could have determined that there was insufficient evidence to prove beyond a reasonable doubt that Pacheco kicked Rivera and thus violated or aided and abetted the violation of Rivera's civil rights while still finding beyond a reasonable doubt that he obstructed justice and made false statements.


obstruct justice or hinder a federal investigation. The record,

however, clearly contradicts Pacheco's claim. There was ample

evidence, as described above, for a reasonable juror to conclude

that Pacheco provided material false statements to federal agents

investigating Rivera's death, and that he did so knowingly,

willfully, and with the intent to prevent investigators from

discovering that he and his fellow officers were present at the

crime scene and were either witnesses to or participants in the

assault of Rivera. We therefore find that the evidence was

sufficient to support Pacheco's convictions on Counts Seven and


3. Vidal

Like Morales, Vidal argues that the evidence was

insufficient to prove his guilt beyond a reasonable doubt as to

Count One, the civil rights charge. Additionally, Vidal contends

that there was insufficient evidence to establish his guilt as to

Count Four, which charged Vidal with violating Rivera's

constitutional rights by intentionally failing to intervene to

protect Rivera from harm at the hands of the officers in Vidal's

presence and under his supervision, all in violation of 18 U.S.C.

§ 242.

Beginning with Count One, Vidal argues the evidence at

trial showed only that he was present during Rivera's arrest and

that he failed to take action. Missing, he claims, is any evidence


that he willfully participated in the assault as something he

wished to bring about, such that the government failed to prove he

had the requisite intent to aid and abet the commission of a civil

rights violation. The evidence at trial, however, was not limited

to establishing Vidal's presence at the scene on July 20. Multiple

witnesses testified that Vidal helped hold Rivera down on the

ground while the officers under his supervision encircled and

repeatedly kicked Rivera. In addition, Torres testified that he

heard Vidal say "[t]his one's mine, this one's mine," as Vidal

transported the badly injured Rivera to the station house. Once at

the station house, Vidal stood by and watched as Rivera was

assaulted further. From these facts, a reasonable juror could have

concluded that Vidal willfully associated himself with the

violation of Rivera's civil rights and participated in this

violation as something he wished to bring about, in violation of 18

U.S.C. §§ 242 and 2.

Turning to Count Four, Vidal repeats that the evidence

showed only that he failed to intervene while other officers beat

Rivera. He suggests that mere inaction is insufficient to merit

supervisory liability for a violation of § 242, and that it was not

apparent that he was acting unlawfully by failing to intervene.

See United States v. Lanier, 520 U.S. 259 , 265 (1997) (holding that

criminal liability for deprivation of a constitutional right under

§ 242 requires that the unlawfulness be apparent under pre-existing


law). He further argues that his failure to intervene as a

supervisor is insufficient to support a conviction, particularly

because it occurred at the gas station, where events unfolded

quickly and the scene was chaotic.

Vidal's argument as to Count Four also fails. The jury

heard evidence that Vidal was a trained SJMPD officer, and that as

a result, he would have known that kicking and punching a

restrained suspect who posed no threat to others went well beyond

the acceptable use of force. In other words, Vidal cannot

plausibly suggest that allowing his subordinates to repeatedly and

violently assault a handcuffed suspect constituted anything other

than an act of apparent unlawfulness and a clear violation of

Rivera's civil rights. See United States v. Serrata, 425 F.3d 886 ,

896 (10th Cir. 2005) (finding sufficient evidence to uphold a § 242

conviction where a prison guard stood by and watched an unjustified

assault on a person in his custody despite being in a position to

intervene); see also DeShaney v. Winnebago Cnty. Dep't of Soc.

Servs., 489 U.S. 189 , 199–200 (1989) ("[W]hen the State takes a

person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety. . . . [An] affirmative duty to

protect arises . . . .").

As we stated in Wilson v. Town of Mendon, 294 F.3d 1 (1st

Cir. 2002), a supervisor can be held liable for his failure to


intervene to protect an arrestee from his subordinates' excessive

use of force when his "action or inaction [is] affirmative[ly]

link[ed] . . . to that behavior in the sense that it could be

characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference." Id. at 6 (internal quotations and citation

omitted). In this case, the jury heard that Vidal held Rivera on

the ground while officers kicked him, permitted an officer to punch

the handcuffed Rivera in the face without comment, told his

officers "this one's mine" as he transported a severely injured

Rivera to the station house rather than a hospital, and again

watched without intervening as Rivera was further assaulted at the

station house. Vidal's supervisory "acquiescence or gross

negligence amounting to deliberate indifference" as to the repeated

assaulting of Rivera by his subordinates was thus well-documented.

In these circumstances, we have no doubt that the "evidence,

including all plausible inferences drawn therefrom, would allow a

rational factfinder to conclude beyond a reasonable doubt that the

defendant committed the charged crime." United States v. Troy, 583

F.3d 20 , 24 (1st Cir. 2009) (internal quotations and citations


E. Jury Instruction

For the first time on appeal, Morales argues that the

district court erred when it instructed the jury that it could


infer consciousness of guilt from the defendants' statements and

actions. Morales concedes that he failed to preserve this claim as

he did not object to the instruction below, and accordingly, we

review for plain error only. See United States v. Combs, 555 F.3d

60 , 63 (1st Cir. 2009). Morales thus bears the burden of showing

that: "an error occurred, which was clear or obvious, and which not

only affected the defendant's substantial rights, but also

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." Id. (internal quotations and citations


Morales takes issue with the following language from the

court's instruction:

When a defendant voluntarily . . . makes a statement tending to establish his innocence, and such . . . statement is later shown to be proven beyond a reasonable doubt knowingly false in whole or in part, the jury may consider whether this circumstantial evidence points to a consciousness of guilt as to the civil rights violation. No one can be convicted of a crime on the basis of consciousness of guilt alone.

In short, Morales argues that this language improperly relieved the

government of its burden of proof as to the element of intent for

Count One. He theorizes that the instruction told the jury that

Morales's statements had already been proven false, thus improperly

establishing consciousness of guilt, a prejudicial misstep

necessitating a new trial.


Morales's argument is, at best, ill conceived. We have

long recognized that trial courts have "broad discretion in

deciding how best to communicate complicated legal rules to a lay

jury," United States v. Newell, 658 F.3d 1 , 19 (1st Cir. 2011),

and here the record shows that the district court acted well within

its discretion. Morales's argument to the contrary ignores the

conditional language that the court used to preface its instruction

and transforms language about potential findings into an assertion

of proven fact. In short, Morales's reading of the instruction is

simply not supported by the record.

In reality, the court properly instructed the jury that

the government bore the burden of proving "each of the elements of

the crimes charged beyond a reasonable doubt," and the

consciousness of guilt instruction did not contradict this

requirement. Morales has thus failed to demonstrate any error in

the court's consciousness of guilt instruction, let alone plain


9 Morales also notes, without developed argumentation, that the court later instructed that "intent is a statement of mind and can be proven by circumstantial evidence. Indeed, it can rarely be established by any other means." Although it is not clear whether Morales seeks to challenge this instruction, we note that this language is clearly not erroneous and does not lower the government's burden of proof, but rather instructs the jury as to the types of evidence it may consider.


F. Variance

Morales also argues that there was a material variance

regarding Count Sixteen of the indictment, which charged him with

making false statements to a federal grand jury, in violation of 18

U.S.C. § 1623. "A variance occurs when the crime charged remains

unaltered, but the evidence adduced at trial proves different facts

than those alleged in the indictment." United States v.

Dellosantos, 649 F.3d 109 , 116 (1st Cir. 2011) (quoting United

States v. Mangual-Santiago, 562 F.3d 411 , 421 (1st Cir. 2009))

(internal quotation marks omitted). Morales failed to raise this

objection below, and thus we review only for plain error. Combs,

555 F.3d at 63.

The indictment alleged that Morales made six false

statements to the grand jury. These statements included assertions

that Morales did not go to the gas station, that he did not see

Rivera at the gas station, that he did not know how Rivera was

injured, and that he did not participate in any way in the arrest

of Rivera. Morales now argues that no evidence was offered to show

that he participated in Rivera's arrest. This, he claims,

demonstrates a material variance as to Count Sixteen that affected

his substantial rights. He suggests that he was unfairly

prejudiced by spillover evidence regarding his codefendants'

participation in the arrest, and that reversal is thus required.


Significantly, however, Morales concedes that the

government's evidence placed him at the gas station and kicking

Rivera at the time of the arrest, although he claims it was not

specified whether the kicks happened before or after Rivera was

handcuffed. In either case, a reasonable juror could have easily

concluded that kicking Rivera at the gas station as officers were

bringing him into custody constituted some form of participation in

the arrest. In sum, the evidence at trial proved precisely the

facts alleged in the indictment.

Moreover, even if there was a variance as to Morales's

participation in Rivera's arrest, Morales has made no showing of

materiality or prejudice. See United States v. Twitty, 72 F.3d

228 , 231 (1st Cir. 1995) ("[T]he jury can convict even if the facts

found are somewhat different that those charged -- so long as the

difference does not cause unfair prejudice."). As we have

previously explained, "[a] jury need not believe that the defendant

did everything that the indictment charges; it may convict if it

believes he did some of the things the indictment charges," so long

as "those things, by themselves, amount to a violation of the

statute, [and] the indictment enables the accused to know the

nature and cause of the accusation against him." United States v.

Mueffelman, 470 F.3d 33 , 38-39 (1st Cir. 2006) (internal quotation

marks and brackets omitted). Here, Morales's statement that he did

not participate in Rivera's arrest was but one of six false


statements set out in the indictment to support a conviction under

18 U.S.C. § 1623. Morales does not and cannot refute the fact that

the jury heard evidence directly contradicting each of his other

statements to the grand jury as described in Count Sixteen of the

indictment. Thus, Morales has failed to show a material variance

between the allegations in Count Sixteen and the evidence at trial

that affected his substantial rights.

G. Vidal's Sentence

Vidal's final claim on appeal is that the district court

erred in sentencing him on Counts One and Four when it used the

wrong Sentencing Guidelines manual to calculate his base offense

level. By applying the less favorable Guidelines in effect on the

date of sentencing rather than the Guidelines manual in effect at

time of the offense, Vidal argues, the court violated the Ex Post

Facto Clause of the Constitution. See U.S. Const. art. I, § 9, cl.


1. Background

On August 13, 2009, Vidal was convicted on Counts One and

Four of violating Rivera's civil rights and causing his death, in

violation of 18 U.S.C. § 242. Vidal was also convicted on Counts

Nine and Fifteen, for making false statements in violation of 18

U.S.C. § 1001 and obstructing justice in violation of 18 U.S.C.

§ 1512(b)(3), respectively. The offense conduct pertaining to

Counts One and Four took place in July 2003, while the offense


conduct pertaining to Counts Nine and Fifteen occurred in March


At sentencing, the district court adopted the Guidelines

calculations set forth in the Presentence Report ("PSR"). Using

the November 2009 edition of the Guidelines manual, to which Vidal

did not object, the court grouped Vidal's four offenses of

conviction pursuant to U.S.S.G. § 3D1.2(b) and (c).10 The court

then calculated Vidal's total offense level to be 39, which

produced a Guidelines sentence range of 262 to 327 months. After

considering the relevant sentencing factors, the district court

announced a below-Guidelines sentence of 200 months of imprisonment

as to Counts One and Four, and 57 months of imprisonment as to

Counts Nine and Fifteen, all to be served concurrently.

10 U.S.S.G. § 3D1.2 instructs that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group." This provision applies "[w]hen counts involve the same victim and two or more acts . . . connected by a common criminal objective or constituting part of a common scheme or plan," § 3D1.2(b), and "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts," § 3D1.2(c). The application notes to these instruction add that "when conduct that represents a separate count, e.g., . . . obstruction of justice, is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor." U.S.S.G. § 3D1.2(c) application n.5.


2. Applicable law and analysis

Vidal now argues that because his offenses under Counts

One and Four were completed on July 20, 2003, the court should have

used the Guidelines manual in effect on that date -- the November

2002 manual -- to calculate his offense level. He notes that the

November 2002 manual provided a base offense level of 25 as to

Counts One and Four, but that the subsequent amendment of the

Guidelines in 2004 resulted in a four-level increase in the

applicable base offense level. As a result, his total offense

level was increased from 34, with a Guidelines range of 168 to 210

months, to 39, with a corresponding range of 262 to 327 months.

This significant increase in the applicable Guidelines range, Vidal

argues, evidences an ex post facto violation that necessitates

resentencing. Because Vidal failed to raise his ex post facto

arguments below, we review his claim only for plain error. United

States v. Rodríguez, 630 F.3d 39 , 41 (1st Cir. 2010).

The Ex Post Facto Clause "forbids the application of any

law or rule that increases punishment for pre-existing conduct."

United States v. Regan, 989 F.2d 44 , 48 (1st Cir. 1993).

Accordingly, the Sentencing Guidelines have long instructed

district courts to apply the Guidelines in force at the time of

sentencing unless doing so would raise ex post facto concerns, in

which case the sentencing court should apply the Guidelines in

effect at the time of the offense of conviction. U.S.S.G. § 1B1.11


(b)(1) (policy statement). We have commended this practice, noting

that "avoiding even the slightest suggestion of an ex post facto

problem . . . makes eminently good sense regardless of whether the

practice stems from a constitutional imperative." Rodríguez, 630

F.3d at 42.

The issue is often complicated, however, when defendants

like Vidal are sentenced for multiple convictions arising from

offenses committed over a period of time that spans multiple

versions of the frequently-revised Guidelines. In this situation,

the Sentencing Guidelines provide additional instruction. The

Guidelines' one book rule specifies that a single version of the

Guidelines should be applied for all convictions at sentencing.

See id. § 1B1.11(b)(2). The Guidelines also provide instruction as

to the multiple-offense scenario, so that "[i]f the defendant is

convicted of two offenses, the first committed before, and the

second after, a revised edition of the Guidelines Manual became

effective, the revised edition of the Guidelines Manual is to be

applied to both offenses." Id. § 1B1.11(b)(3).

These sentencing practices are firmly rooted in the case

law of this circuit. See, e.g., United States v. Silva, 554 F.3d

13 , 22 (1st Cir. 2009); Cruzado-Laureano, 404 F.3d at 488. In

Cruzado-Laureano, the defendant was convicted on eleven counts of

money laundering, extortion and embezzlement, all of which involved

offense conduct completed prior to the effective date of a new


Guidelines manual. 404 F.3d at 488. However, because Cruzado-

Laureano's conviction on a twelfth count -- witness tampering --

was based in part on an act that took place a month after the new

manual went into effect, we found that the district court erred in

using an earlier Guidelines manual at sentencing rather than the

manual in effect at the time that the last offense of conviction

was completed. Id. We reaffirmed this holding in United States v.

Gilman, 478 F.3d 440 , 449-50 (1st Cir. 2007) (finding no ex post

facto violation where newly revised manual was applied to all

counts of conviction because a single wire transfer was executed

after the revised manual's effective date), and again in Silva, 554

F.3d at 22 (finding no ex post facto violation where revised manual

governed sentencing for multiple convictions stemming from offenses

variously committed over a span of approximately five years).

Vidal's last offense of conviction took place in March

2008, when he lied to investigators and obstructed justice in an

effort to conceal his participation in having caused Rivera's

death. Thus, according to the Guidelines' instructions and our

case law, the November 2007 manual that was in effect in March

2008, not the pre-amendment November 2002 manual that Vidal favors,

should have applied at Vidal's sentencing.11 Vidal protests,

11 The district court at sentencing actually applied the Guidelines in effect on the date of sentencing, the November 2009 Guidelines, rather than the November 2007 Guidelines. However, both manuals post-dated the 2004 amendment and thus both produced the same four- level increase in Vidal's base offense level and the same


arguing that the one book rule cannot determine the outcome of this

issue as the rule itself violates the Ex Post Facto Clause of the

Constitution as applied to his case. Specifically, he argues that

the obstruction convictions are "relatively minor 'cover-up'

offenses" that should not be permitted to increase the Guidelines

range of his prior, more serious offenses without fair notice.

We have not yet squarely addressed the constitutionality

of the one book rule, preferring to avoid answering unnecessary

constitutional questions. See United States v. Goergen, 683 F.3d

1 , 4 (1st Cir. 2012) ("Goergen's brief -- although opaque on this

issue -- may be arguing that the guidelines instructions themselves

(particularly the one book and multiple offense rules) violate the

Ex Post Facto Clause . . . . [A]ssuming such an argument . . .

could be considered . . . in the teeth of contrary circuit

precedent, any such mistake would be harmless.") (internal

citations omitted). In this case, however, there can be no denying

that the use of the amended Guidelines manual negatively and

seriously impacted Vidal's Guidelines range as calculated by the

district court. Moreover, the government's argument that the Ex

Guidelines range for Vidal's total offense level. Accordingly, to the extent that the court erred by applying the 2009 rather than the 2007 Guidelines -- a point which Vidal does not argue -- we find that such error was harmless. Cf. Silva, 554 F.3d at 22 ("the correct comparison is between the 2006 Guidelines, which the district court employed, and the 2004 Guidelines, in effect on the date that Silva's last offense of conviction was completed. . . . Our analysis of the 2004 and 2006 Guidelines reveals no relevant differences that would affect Silva's sentence.").


Post Facto Clause does not apply to the now-advisory Guidelines has

been foreclosed by the Supreme Court's recent holding to the

contrary in Peugh v. United States, 133 S. Ct. 2072 , 2079 (2013).

Thus, the question of the one book rule's constitutionality is now

squarely before us.

We find that the one book rule does not violate the Ex

Post Facto Clause as applied to a series of grouped offenses like

Vidal's. In so holding, we make explicit what has long been

implicit in the case law of this circuit. See Goergen, 683 F.3d at

4; Silva, 554 F.3d at 22; Gilman, 478 F.3d at 449-50; Cruzado-

Laureano, 404 F.3d at 488. This decision is also consistent with

the findings of an overwhelming majority of our sister circuits.

United States v. Kumar, 617 F.3d 612 , 626-28 (2d Cir. 2010) ("We

conclude that the one-book rule set forth in § 1B1.11(b)(3) does

not violate the Ex Post Facto clause when applied to the sentencing

of offenses committed both before and after the publication of a

revised version of the Guidelines.") (emphasis omitted); United

States v. Duane, 533 F.3d 441 , 449 (6th Cir. 2008) ("[W]here, as

here, offenses grouped together for sentencing purposes were

committed before and after an amended version of the Guidelines

went into effect, the use of the amended version of the Guidelines

does not violate the Ex Post Facto Clause."); United States v.

Sullivan, 255 F.3d 1256 , 1262-63 (10th Cir. 2001) (same); United

States v. Vivit, 214 F.3d 908 , 918-19 (7th Cir. 2000) ("[W]e


believe that the enactment of the grouping rules provides fair

notice such that the application of §§ 1B1.11(b)(3) and 3D1.2 does

not violate the Ex Post Facto Clause."); United States v. Lewis,

235 F.3d 215 , 218 (4th Cir. 2000) ("[I]t was not § 1B1.11(b)(3)

that disadvantaged Lewis, but rather her decision to commit further

acts of tax evasion after the effective date of the 1993

guidelines."); United States v. Kimler, 167 F.3d 889 , 893-95 (5th

Cir. 1999) ("[A] defendant has notice that the version of the

sentencing guidelines in effect at the time he committed the last

of a series of grouped offenses will apply to the entire group.");

United States v. Bailey, 123 F.3d 1381 , 1404-07 (11th Cir. 1997)

(same); United States v. Cooper, 35 F.3d 1248 , 1250-53 (8th Cir.

1994), vacated, 514 U.S. 1094 (1995), reinstated, 63 F.3d 761 , 762

(8th Cir. 1995) (per curiam) (same). But see United States v.

Ortland, 109 F.3d 539 , 546-47 (9th Cir. 1997) (finding ex post

facto violation where district court applied revised Guidelines to

all five mail fraud counts, only one of which involved conduct

committed after the amendment).12

12 The Third Circuit, in 1994, found that the application of the one book rule to grouped conduct committed before and after a Guidelines revision violated the Ex Post Facto clause. United States v. Bertoli, 40 F.3d 1384 , 1404 (3d Cir. 1994) ("The fact that various counts of an indictment are grouped cannot override ex post facto concerns. . . ."). More recently, however, the court distinguished Bertoli as having involved "discrete, unconnected" acts that were grouped improperly, and it found no ex post facto violation because "grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of


Vidal argues that we cannot uphold the application of the

one book rule to his case because he lacked proper notice as

required by the Ex Post Facto Clause. He concedes that, had he

consulted the Guidelines in 2003, he "could have suspected . . .

that any punishment for his § 242 offenses could be enhanced (under

the one-book rule) were there to be a subsequent amendment and were

he to commit another federal offense after that amendment took

effect." He concludes that this notice, however, was insufficient,

citing Miller for the proposition that Ex Post Facto violations

"cannot be avoided merely by adding to a law notice that it might

be changed." Miller, 482 U.S. at 431.

Vidal is correct insofar as he argues that the issue of

notice is central to our Ex Post Facto analysis. "Critical to

relief under the Ex Post Facto Clause is not an individual's right

to less punishment, but the lack of fair notice and governmental

restraint when the legislature increases punishment beyond what was

prescribed when the crime was consummated." Weaver v. Graham, 450

U.S. 24 , 30 (1981). In this case, however, Vidal had far more than

mere notice that the Guidelines "might be changed." The Sentencing

Guidelines' one book and grouping rules placed Vidal on notice that

if he committed a closely related offense in the future, his

sentence for both offenses would be calculated pursuant to the

his or her last offense in a series of continuous, related offenses." United States v. Siddons, 660 F.3d 699 , 706-07 (3d Cir. 2011).


Guidelines in effect at the time of that later, related offense

conduct. The Guidelines' grouping provisions became effective in

1987, and the one book and multiple offense rules, U.S.S.G.

§ 1B1.11(b), became effective in 1993. In other words, both

Guidelines instructions were enacted well before Vidal's offense

conduct occurred, and he nevertheless elected to proceed with the

commission of obstruction offenses that would trigger the

application of the revised Guidelines. Accordingly, the change in

Vidal's offense level is properly viewed not as a consequence of an

ex post facto violation, but as the direct result of his decision

to engage in closely related offense conduct in 2008. See Kumar,

617 F.3d at 629 ("Here, the defendants' [later] obstruction offense

is the 'actual crime' triggering the application of the one-book

rule, the defendants had prior notice of the consequences of that

crime, and therefore the application of the one-book rule is

proper."). Therefore, the Supreme Court's holding in Peugh, 133 S.

Ct. at 2078, that sentencing a defendant under current Guidelines

providing a higher sentencing range than Guidelines in effect at

the time of the offense is a violation of the Ex Post Facto Clause,

is inapplicable here because Peugh did not involve the application

of the one book rule to a series of grouped offenses like Vidal's.

Notably, we do not suggest that all applications of the

one book rule will in all cases satisfy the Ex Post Facto Clause's

requirements. We do not, for example, condone the retroactive


application of Guidelines made more severe after the last offense

of conviction occurred. In this case, however, the application of

the amended Guidelines to Vidal's grouped convictions, pursuant to

the one book rule, did not constitute a violation of the Ex Post

Facto Clause.

H. Morales's Sentence

Morales's final claim is that he was a minor participant

in the assault on Rivera and that the district court erred in not

granting him a downward departure pursuant to U.S.S.G. § 3B1.2(b).

We recognize the sentencing court's broad discretion to determine

the appropriateness of a downward departure, and "we will reverse

only if the evidence overwhelmingly demonstrates that the defendant

played a part that makes him substantially less culpable than the

average participant such that the court's decision was clearly

erroneous." United States v. Brandon, 17 F.3d 409 , 460 (1st Cir.

1994); see also United States v. García-Ortiz, 657 F.3d 25 , 29 (1st

Cir. 2011). The burden of producing such overwhelming evidence

falls on Morales, as "[a] defendant who seeks a downward

role-in-the-offense adjustment must prove her entitlement to it."

United States v. Teeter, 257 F.3d 14 , 30 (1st Cir. 2001). Faced

with this uphill battle, Morales's claim of error falls flat.

At sentencing, Morales sought a sentence lower than those

imposed on his co-defendants who cooperated, arguing among other

things that he did not participate in the continued assault on


Rivera at the police station and that the jury did not find that

his actions caused Rivera's death. The district court concluded

that although Rivera may have had a relatively "lesser role" as

compared to certain defendants, it could not ignore the fact that

Morales had kicked Rivera with his booted foot, nor could Morales

prove that his kicks had caused less injury to Rivera than the

kicks of others at the gas station. Moreover, the court reasoned

that the sentences imposed on the cooperating defendants were not

an appropriate point of comparison as, unlike Morales, they had

accepted responsibility in a timely manner and provided valuable

cooperation to the government. After calculating the Guidelines

range at 135 to 168 months of imprisonment, the court noted that

Morales was a first-time offender with an otherwise unblemished

record as a police officer, and it ordered a below-Guidelines

sentence of 120 months.

The court properly rejected Morales's claim that he

merited a downward departure because he "only" kicked Rivera two or

three times at the gas station and did not continue the assault at

the station house. It also clearly explained why Morales's

sentence should not be compared to those of cooperating co-

defendants who accepted responsibility. Thus, the district court

did not err, let alone clearly err, in denying the minor

participant departure when sentencing Morales to a term of 120

months of imprisonment.


III. Conclusion

For the above-stated reasons, we affirm.



Back to top