Appointment of the
Court, for
appellant.
Jeanette Mercado R os, Assistant United States Attorney,
______________________
with whom Guillermo Gil, United States Attorney, and Jos A.
______________
_______
Quiles Espinosa, Senior
Litigation Counsel, United
States
________________
Attorney's Office, were on brief for appellee.
____________________
September 14, 1994
____________________
____________________
*
PIERAS,
H ctor
M.
placing
dangerous
Carrillo,
the life of
weapon.
appeals
Defendant-appellant,
his conviction
a postal inspector
for
robbing
in jeopardy
and
by using a
He
inappropriate
Carrillo
court
committed no error in
or in
(1st Cir. 1993) (citing United States v. Alvarez, 987 F.2d 77, 79
________________________
(1st Cir. 1993), cert. denied, 114 S. Ct. 147 (1993)).
____________
are to
p.m.,
O'Neill, a
States
approximately 8:30
Postal Inspector,
Inspector
on twenty-four
O'Neill was
hour call
an intersection, a man
The facts
and
was
to her.
carried a
While
put a revolver to the left side of her head, told her that he was
holding
ordered her to
The man
- 2 -
the car.
O'Neill
telephoned
robbery.
She
the postal
also informed
States
office
to
inform them
the robber,
via the
and that
his
of
stolen car's
vehicle belonging to
action constituted
federal
The day after the robbery, the stolen vehicle was found
parking lot near appellant's residence and not far from the
disheveled, dismantled
cellular telephone,
state.
The vehicle
bulletproof vest,
postal
investigate
inspector
assigned
to
by
the
case
Puerto Rico
vehicle.
police
The postal
The
received
blue bulletproof
was also
vest
the
and charged
It
with the
inspector obtained
theft of
a motor
appellant's photograph
and
out
Inspector O'Neill
she
his
the photospread on
identified appellant
photograph
from
The postal
among
as
the
her
November
assailant
others
in
by
the
photospread.
On November 25, 1992,
true bill against the appellant.
returned a
- 3 -
indictment.
with
unlawfully
assaulting,
indictment charged
resisting,
opposing,
impeding,
Ivette O'Neill
a revolver.
the
appellant
The indictment
appellant with
was submitted
to the
January 8, 1993.
The case
noon on January
12, 1994;
jury at around
however, about five hours later the jury sent a note to the judge
informing
receipt of the
were unable to
jury's note,
reach a verdict.
Upon
the
the jury
or more counts.
agreed on one
however, the jury sent the judge a second note informing him that
they were unable
back
into the
to reach a
courtroom,
verdict.1
the judge
Before calling
summoned
the jury
counsel for
the
parties
counsel
opposed the
request for a
declare a mistrial.
Appellant's
The government
instead that
____________________
1
The note read:
reach a verdict."
"Your
honor, honestly it
is impossible
to
- 4 -
the
jury be
allowed to go
further deliberations.
"Allen" charge.
prove helpful.
reach a
return in
called
home and
However, when
verdict if allowed
to go home and
the judge
in the negative.
The
rest of
the parties, the judge set a new trial for thirteen days later.
On January 20, 1993, five days before the new trial was
scheduled
pursuant
to
to
begin,
Rule
appellant
29(c)
of
the
filed
Federal
motion
Rules
of
of
acquittal
Criminal
Procedure.2
In his motion,
the evidence
____________________
presented at
that a
retrial was
Jeopardy
deny
Clause.
proscribed by
In
jury trial
so that he
denial
his
of
the Fifth
motion.
Amendment's Double
could have
The
to postpone the
an opportunity to
trial
court
did
not
appeal the
rule
on
appellant's
second
motion
trial.
until the
After
day
entertaining
the
of the
bench denying
commencement
counsel's
of the
argument on
the
appellant's
motion
for acquittal
and
conviction.
The court
continuance
of the trial.
January 25,
trial, at
made
request for a
as scheduled on
On the
second day of
for judgment
denied.
trial.
of
acquittal which
the court
third day of
the appellant not guilty on counts one and two of the indictment,
but guilty on count three.
the
court
granted,
the
filed
extension, which
final motion
for
____________________
Appellant filed his motion eight days after the jury was
discharged; however, his motion was timely as the 7-day period
began to run on January 13 and intermediate weekends are excluded
from the computation of a seven-day period. See United States v.
___ ________________
Castro-Lara, 970 F.2d 976 (1st Cir. 1992), cert. denied, Sarraff
___________
____________ _______
v. United States, 113 S. Ct. 2935 (1993).
________________
- 6 -
judgment of acquittal
on February
22, 1993.
The court
denied
of
imprisonment of
release of fiveyears.
121 months
and
a term
of supervised
A.
Amendment.
double
Appellant
jeopardy
the Double
court's
acquittal, but
argues that
he
was
Jeopardy Clause of
the second trial
entitled
to
failure to
recognize
the
Pitching
the second
because
first jury
the commencement of
second
his
the Fifth
put him
in
judgment
of
his argument
insufficiency of
the
____________________
evidence
him
government
to "take two
bites out
conviction
of the
apple" and
obtain a
obtained at the
Double Jeopardy
first trial.
In essence, appellant
Clause
precluded his
government failed
the
first trial.
second
to present
trial due
to
the fact
enough evidence to
Specifically, appellant
that
the
convict during
asserts that
under
of his motion
of acquittal for
insufficiency of
to a bank robbery
count at trial,
convicted by the jury after the trial court denied his motion for
a judgment of acquittal.
arguing
that the trial court had erred in denying his motion for judgment
of
acquittal.
holding
The
that the
Court of
Appeals
prosecution had
for the
failed to
Sixth
Circuit,
present sufficient
ordered.
The
Supreme Court
double
jeopardy had
appeals
determined
sufficient
granted certiorari
attached at
that
evidence
be entered or
the
the moment
prosecution
to convict
at
a new trial
and
that the
had
the first
held that
court of
not
presented
trial
and that,
- 8 -
therefore,
judgment of acquittal.
A defendant
the
Double
repeated
Dinitz,
______
Jeopardy
in a
criminal proceeding is
Clause
against
protected by
multiple punishments
same offense.
and
United States v.
_________________
to successive trials.
Lydon,
_____
466 U.S.
foreclosed by
including
a request
717
not an absolute
294 (1984).
Jeopardy Clause is
U.S. 711,
"The
protection embodied
defendant's voluntary
for or
be waived
actions or
effectual consent
to
in the
choices,
a mistrial."
21 (1st Cir.),
105
If
defendant,
mistrial
the defendant
is declared
is deemed
at
to have
informed
The
appellant moved
the
trial court
unable to reach a
appellant argued
declaration
verdict.
that he
of a mistrial.
for a
for the
request
of
waived any
the
double
Id.
__
mistrial after
second
the jurors
time that
but to
they were
us, the
consent to
the
the
after
the
respond
inability
court elicited
suggestions
reach a
from counsel
verdict.4
on
how to
court of their
Before granting
appellant's
____________________
4
The exchange between
relevant part, as follows:
the
court and
the
parties was,
THE COURT:
Okay.
Good evening.
It's
fifteen after six and I have a message
from the jury that it reads:
"Your
Honor, honestly, it is impossible to
reach a verdict." Very well. Let's hear
suggestions from counsel.
[PROSECUTOR]: Your Honor, they may just
be very exhausted, and I would suggest to
the Court to just let them rest this
evening and have them return tomorrow
morning to continue deliberation.
They
have not been deliberating that long
considering that the trial did begin on
Friday.
THE COURT:
Well, the case was submitted
about twelve noon.
[PROSECUTOR]:
Honor.
That
is
correct,
your
in
reflects
mistrial but
not
only
that the
that
that he expressly
appellant
consented to a
Thus, the
requested
_________
new trial.
the
The
not
United States,
______________
Double
468 U.S.
317, 324
(1984)
Richardson v.
_____________
(citing to
Logan v.
________
Appellant
permitted
argues
jury access,
that
the
during deliberations,
previous
evidence
of
arrest.
The
and
appellant.
white
photospread
photographs
court
improperly
to a
photospread
black
trial
of
had
been admitted
into
males
including the
paper so that
was
the
same
photospread
shown
to Inspector
O'Neill
on
November 12, 1992, when she first identified the appellant as her
assailant.
The government
to buttress
____________________
dismissed, your Honor, very honestly.
- 11 -
Inspector
at both trials.
reversible
with them
deliberations.
court committed
to
impermissible
contrary to
admission into
evidence of "other
Federal Rules of
acts" evidence
Evidence.
The
was a
he had
see to it that
appellate record.
in
a prior criminal
it.
Cir.
appellant's
photograph
statement
Aside
Effective
appellate
from its
is precluded
review
have
by his
part of the
is
impossible
the district
(1st
it might
court.
We will
record.
failure to
without
in
1993).5
Finally,
invited
the
photospread
the
and
during
jury
closing
to
compare
view
argument,
appellant's
a written
so doing,
appellant
Inspector
In
it
4 F.3d 1,
to
Inspector O'Neill.
arguments never
counsel
made by
not consider
____________________
5
Although appellant objected
to the admission of
the
photospread into evidence, the court overruled the objection.
Jurors generally are entitled to examine exhibits properly
admitted into evidence. United States v. De Coito, 764 F.2d 690,
_________________________
695 (9th Cir. 1985); see also United States v. Jackson, 477 F.2d
___ ____ _________________________
879, 880 (8th Cir. 1973); Dallago v. United States, 427 F.2d 546,
________________________
553
(D.C. Cir. 1969).
Appellant did not object to the
photospread going to the jury room.
- 12 -
O'Neill's written
description of
photograph in the
photospread.
her assailant
Thus, in
and appellant's
access to
reversible error.
Unless
Indeed,
trial court
later
sought
Figueroa, 976
________
an opportunity
be presented
F.2d
apparent from
may have
to
would not
However, even if it
1446, 1453
on
appeal.
(1st Cir.
to address
so that
the claim
United States v.
_________________
103(a)(1)).6
Before
objecting to
the admission
____________________
6
of the
affected and,
(1) Objection
Objection
In case the ruling is one admitting
evidence, a timely objection or motion to
_______________________________
strike appears of record, stating t h e
_________________________________________
specific ground or objection, if the
_________________________________________
specific ground was not apparent from the
_________________________________________
context; . . .
_______
(emphasis added).
- 13 -
photospread, the
Inspector
O'Neill
pertaining
nothing in
appellant's line
that
admission
the
of
the
examination
was
the
photospread.
of questioning indicated
introducing
aimed at
to
dire examination of
____
photospread
evidence.
establishing
was
a concern
equivalent
Rather, the
that Inspector
an adequate identification of
However,
to
voir dire
____ ____
O'Neill
her assailant
in color
The
At the conclusion of
appellant
whether
affirmative
objected.
without elaboration,
Appellant
and
the
court asked
responded
in
the
court overruled
the
objection.
Thus,
objection
since
appellant
of
the
photospread
to
and no such
state
specific
basis of objection
failed
court was
into
evidence.
Consequently,
even
if
1990);
Fed.
see
___
R.
Evid.
103(d)
- 14 -
("Nothing
in
[Rule
103]
precludes
taking notice
of plain
were not
errors affecting
brought to the
substantial
attention of
the
Court").
We have explained in general terms that
The
admissibility
of
"other
acts"
evidence depends on a two-part analysis.
First, "other acts" evidence must be
excluded if it is relevant only because
____
it shows bad character (i.e. the proposed
___
logical inference includes character as a
necessary link.)"
United
States v.
_________
___________________
Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
___________
1990) (emphasis in original).
Second,
the
district
court must
weigh the
probative value of the
"other acts"
evidence against any unfair prejudice to
the defendant; and it is only when the
risk of unfair prejudice "substantially"
outweighs its probative value that the
evidence is to be excluded.
United States v. Figueroa,
___________________________
States v. Shenker,
_________________
(1st
at
1453 (quoting
as "mugshots", we
specifically
admissibility.
976 F.2d
to
three factor
determining
However,
introduction of
have adopted a
tailored
United
______
their
(1990).
a
the
photograph;
2. The photographs themselves, if shown
to the jury, must not imply that the
defendant has a prior criminal record;
and
- 15 -
we examine not only what was submitted, but why and how.
Cannon,
______
admission
of
group
"mugshot"
of the defendant.
one count
of
claiming
that
prejudicial
armed bank
the
of
photographs
included
robbery
admission
which
of
and appealed
the
his
photographs
conviction
was
unduly
The
and-shoulder shots of
Id.
__
We found that
the admission of
the group of
an abuse
of
discretion.7
An application of the three factor Fosher test
______
case establishes that admission
did
not
constitute
identification
witness at
identification of
first
trial.
strengthen
error.
trial
appellant had
The
was
government's
chief
Inspector O'Neill,
whose
at the
Inspector
expected,
against
plain
in this
the
O'Neill's
defense
Inspector
did
O'Neill's
identification testimony.
indeed mount
an
identification
As
effective
attack
testimony,
which
____________________
7
We undertook "abuse
of discretion" review
in Cannon because
______
the defendant had interposed a specific Rule 404(b) objection.
- 16 -
weakened
government
key
link in
had
the
government's
demonstrable
need
case.8
for
the
Thus,
the
challenged
Second, the
imply that
appellant
had
Cannon,
______
the photospread
contained front-view
the face
Moreover,
only
cardboard
No photographic backdrops
shots,
no number
photographs
in
of
individual
were visible.
markings,
Cannon,
______
each
photographs only.
and
the
no
was visible,
There were no
height
photographs
bars.
included
as
profile
Like
the
in
the
the
manner
in
which
the
photospread
was
Inspector
photographs.
O'Neill said
nothing
the source
of
the
to examine and
consider it.
We find no
as charged
levels
enforcement
level
due
in count
to
the
fact
officer," see
___
because
the loss
three,9 see
___
id.
__
of I,
U.S.S.G.
that the
victim
3A1.2(b);
sustained as
2B3.1; by
was
and finally
result of
2B3.1(b)(6)(A).
"law
by one
the robbery
Combined with
____________________
9
the use of a
level of
30
resulted in a
months.
guideline sentencing
range ("GSR") of
novo.
____
(citing
Cir.),
(1993).
121
de
__
97 to
F.2d 1472,
1478-79 (9th
review the
Id.
__
Appellant
firearm
is
argues
inappropriate
that
because
the
the
enhancement for
firearm
for
using
which
he
received
in
count
of
the
indictment.10
He
contends,
without
____________________
10
him on count two the sentencing court could not take the
into account for
calculating his
sentence on count
firearm
three.
We
is to
a robbery.
on
The fact that the jury found the appellant not guilty
enhancement
applied
indictment is irrelevant
under
count
three,
to the sentencing
because
count
three
with a barrel
appellant's
a stainless
conduct of which
steel revolver
long."
Accordingly,
enhancement is based on
to
we need
which the
three as
go
no
further.
enhancement was
alleged, and
since
Since
the
conduct
applied formed
part of
appellant was
convicted on
2B3.1(b)(2)(B), and
Guideline
that the
sentence was
of a firearm, see
___
resulting
proper and
Next,
enhancement
the
imposed
enforcement officer
appellant
because
argues
Inspector
constituted
ten-year and
well within
U.S.S.G.
one-month
the twenty-five
2114.
that
the
O'Neill
error since
the
three
was
base
level
a
law
offense
takes
account of
court
applied
O'Neill's status
the
as a
enhancement pursuant
postal employee.
to
Guideline
The
Section
because
the defendant
had to
be aware
enhancement
that Inspector
O'Neill was a law enforcement officer as the vehicle that she was
driving exhibited
vehicle.
characteristics identifying it
as an official
Appellant
contends that
Note 4
of the
Commentary to
- 21 -
Appellant's reliance
Note
is a
employee.
conviction was motivated by the fact that the victim was a postal
employee.
However, the
because
it found
believe
that Inspector
Therefore,
that
had
a law
reasonable cause
enforcement officer.
the BOL by
3A1.2(b).
to
to U.S.S.G.
2B3.1(b)(6)(A)
- 22 -
at issue
than $10,000.00.
here --
a 1989
The
loss
Honda Accord,
the
a bulletproof
result of
-- had a total
and the
market
suffered as a result
of a robbery
Appellant's contentions on
than $10,000.00
making its finding; (2) the court did not use the "black book" to
establish the vehicle's
value of
value
market
$10,000.00
(4) the
other
items missing
from the
car do
and the
not exceed
$10,000.00.
Ordinarily, when
loss
is calculated
by
particular property at
The
using
the
issue.
fair
U.S.S.G.
market
amount of the
value
2B1.1;
App. Note
Id.
__
"The
loss
2.
need
not
be
recovered
determined
____________________
11
the
of
U.S.S.G.
with
precision,
and
information
U.S.S.G.
inferred
from
available, including
any reasonably
the scope
of the
reliable
operation."
2B1.1; App.
Note 3.
the
may be
district
court's finding
on
of demonstrating that
value
is clearly
erroneous.
sentencing
reasonably reliable
market value
$10,000.00,
may
base
its
information available.
of the
the
court
items
at issue
court credited
finding
In
on
any
here exceeded
information in
the sum
of
the presentence
stated
its
cost
to
the
government,
bulletproof vest,
radio,
$8,750.00;
the
$1,700.00; the
lights, $35.00.
radio converter,
Appellant
value
of
the
$850.00; the
$700.00; and
presented no evidence
emergency
to rebut
the
by their
tax exempt
of government vehicles
status.
erroneous.
The
is not
sentencing court's
set forth
- 24 -
CONCLUSION
__________
For
- 25 -