U.S. v. Hernandez, 97-1944

• Decision Date: 05 May 1998
• Docket Number: No. 97-1944,97-1944
• Citation: 146 F.3d 30
• Parties: UNITED STATES of America, Appellee, v. Edwin HERNANDEZ, A/K/A Edwin Hernandez-Favale, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 30

146 F.3d 30

UNITED STATES of America, Appellee, v. Edwin HERNANDEZ, A/K/A Edwin Hernandez-Favale, Defendant, Appellant.

No. 97-1944.

United States Court of Appeals First Circuit.

Heard May 5, 1998.

Decided June 12, 1998.

Edgardo Rodriguez-Quilichini, Assistant Federal Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant.

Antonio R. Bazan, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior Litigation Counsel, Camille Velez-Rive and Nelson PerezSosa, Assistant United States Attorneys, were on brief, for the United States.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

Tried on a three-count indictment, defendant-appellant Edwin Hernandez-Favale (Hernandez) prevailed on two. He now seeks a clean sweep. For the reasons that follow, we affirm his conviction.

I. BACKGROUND

We present the facts in the light most congenial to the guilty verdict, consistent with record support. See United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.1991).

In the early evening of January 30, 1996, Juan Carlos Lado, driving a Nissan sports car, stopped at a traffic light in the Isla Verde section of San Juan, Puerto Rico. A stranger poked a gun (described as a small, nickel-plated pistol) through Lado's open car window, threatened his life, forced him to exit the vehicle and disgorge his valuables, and ultimately absconded with the car and the loot. Lado kept a .45 caliber pistol secreted within the vehicle, and the perpetrator unwittingly made off with that firearm as well.

Lado immediately called the police, who were able to recover his automobile that night. Lado retrieved it the next day. His pistol was gone, but he discovered a full ammunition magazine (which neither belonged to him nor fit his gun) under the driver's seat. Lado informed the authorities of these facts and turned over the magazine.

On February 3, law enforcement officers arrested Hernandez (a previously convicted felon who had a history of involvement in violent crimes) and a companion (known only as Alicea) on charges unrelated to the January 30 carjacking. When the police discovered a pistol on Alicea's person and identified it by its serial number as Lado's, they quickly arranged a photographic spread. Reviewing the spread, Lado tabbed Hernandez as the man who accosted him and absconded in his Nissan.

A federal grand jury thereafter charged Hernandez with carjacking, 18 U.S.C. § 2119(1) (1994), using or carrying a firearm during a crime of violence, 18 U.S.C. § 924(c)(1) (1994), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (1994). A petit jury acquitted Hernandez on the first two counts but convicted him on the third. Judge Perez-Gimenez denied Hernandez's post-trial motions and this appeal ensued.

II. ANALYSIS

The appellant attacks his conviction on three fronts. We discuss his claims sequentially, interspersing our discussion with further facts as necessary to place each claim into proper perspective.

A. Judgment of Acquittal.

After the jury verdict, the appellant moved under Fed.R.Crim.P. 29(a) for judgment of acquittal on the third count. The district court denied this motion, adjudging the evidence presented at trial sufficient to support the felon in possession conviction. On appeal, Hernandez admits his status as a previously convicted felon but assigns error to the lower court's ruling on the ground that the government failed to prove his possession of a firearm beyond a reasonable doubt.

We review Rule 29 determinations de novo. See United States v. Carroll, 105 F.3d 740, 742 (1st Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997). The Rule 29 standard is identical in both the trial and appellate courts; the tribunal must discern "whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994). This formulation requires that "we consider all the evidence, direct and circumstantial, and resolve all evidentiary conflicts in favor of the verdict." Carroll, 105 F.3d at 742.

In support of his claim of evidentiary insufficiency, the appellant makes two basic points. First, he asseverates that there was no direct evidence to support his conviction because the authorities never recovered the carjacker's gun (and, therefore, the jury never saw it). We reject this asseveration out of hand. The government presented direct evidence of Hernandez's guilt in the form of Lado's eyewitness testimony that Hernandez was armed. (Indeed, Lado described the gun in some detail and testified that the appellant first put it to his head and later hit him across the mouth with it.) Since the jurisprudence of Rule 29 requires that a reviewing court defer credibility determinations to the jury, see O'Brien, 14 F.3d at 706, this testimony, in itself, is enough to support the "possession of a firearm" element of the offense of conviction.

In all events, it is common ground that "the criminal law does not place a special premium on direct evidence." Id. To the contrary, the prosecution may satisfy its burden of proof by direct evidence, circumstantial evidence, or any combination of the two. See id.; see also United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993). Given Lado's testimony and the otherwise-unexplained presence of a magazine full of bullets in the stolen car, a rational jury surely could have believed that the appellant brandished a firearm on January 30, 1996.

The appellant next posits that his conviction cannot stand because it is inconsistent with the jury's verdict on the other two counts. This thesis, too, is flawed. For one thing, inconsistent verdicts do not automatically require reversal of a conviction. See United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir.1990). Both the interest and the appearance of justice are fully vindicated as long as the reviewing court assures itself that, regardless of an acquittal in some other case or on some other count, the evidence is legally sufficient to support a guilty verdict on the count of conviction. ¹ See Powell, 469 U.S. at 66, 105 S.Ct. 471; Bucuvalas, 909 F.2d at 597. The evidence of record here easily passes that modest test.

For another thing, a close look at the statutes involved in this case reveals no necessary inconsistency. The statute underlying the carjacking count, on which the jury acquitted the appellant, requires the prosecution to prove beyond a reasonable doubt that the defendant (1) took a motor vehicle, (2) that has moved in interstate commerce, (3) from another person, (4) by force and violence or by intimidation, (5) with the intent to cause death or serious bodily harm. See 18 U.S.C. § 2119 (1994). The statute underlying the second count, on which the jury also acquitted, requires the government to prove beyond a reasonable doubt that the defendant (1) used or carried a firearm, (2) during and in relation to a crime of violence or drug trafficking offense. ² See 18 U.S.C. § 924(c)(1) (1994). In theory, the jury could have decided that, while Hernandez was indeed the person who accosted Lado, gun in hand, the government failed to prove the intent element in the carjacking statute (and, thus, failed to prove the "crime of violence" element needed to convict under the "use and carry" statute). The probability of such a scenario is not the issue. It is possible, and a finding made pursuant to this scenario would not in any way impugn the guilty verdict on the felon in possession count. ³ So viewed, the verdicts are not irretrievably inconsistent.

B. The Prosecution's Summation.

The appellant next calls our attention to the prosecutor's comments concerning constructive possession. ⁴ He assigns error both to the trial court's overruling of his contemporaneous objection to those comments and to the court's denial of his subsequent motion for a mistrial.

Our approach is familiar. We first must determine whether the trial court abused its discretion in overruling the objection (thus, in effect, deeming the prosecutor's remarks proper), and, if so, we must proceed to decide whether the offending remarks were sufficiently prejudicial that they served to deny the defendant a fair trial. See United States v. Grabiec, 96 F.3d 549, 552 (1st Cir.1996); United States v. Wood, 982 F.2d 1, 4 (1st Cir.1992). As to the appellant's related point, we likewise review the district court's resolution of a mistrial motion under an abuse of discretion rubric. See United States v. Pierro, 32 F.3d 611, 617 (1st Cir.1994). Here, because the appellant premised his motion for a mistrial on the challenged portion of the prosecutor's summation, the two assignments of error merge into a single forensic unit, and we consider them as such.

The government concedes that it charged Hernandez in count three with possession of a firearm other than Lado's .45 caliber pistol. The appellant maintains, however, that the prosecutor's reference to Lado's gun confused the issue and led to a conviction on count three based on his constructive possession of that weapon. In short, the appellant insists that, because of the prosecutor's improper argument, the jury found him guilty of possessing a firearm (namely, Lado's pistol) other than the one for which he was indicted (namely, the small, nickel-plated pistol that never surfaced).

This theory lacks force. The record reveals that the prosecutor's summation was well within the pale. In it, he suggested that, because Lado's pistol...