273 F.3d 46 (1st Cir. 2001), 00-1990, United States v. Otero-Mendez

Docket Nº:00-1990
Citation:273 F.3d 46
Party Name:UNITED STATES OF AMERICA, Plaintiff, Appellee, v. JOSE A. OTERO-MENDEZ, Defendant, Appellant.
Case Date:December 10, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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273 F.3d 46 (1st Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff, Appellee,


JOSE A. OTERO-MENDEZ, Defendant, Appellant.

No. 00-1990

United States Court of Appeals, First Circuit

December 10, 2001

Submitted Sept. 13, 2001


[Hon. Salvador E. Casellas, U.S. District Judge]

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V¡ctor P. Miranda-Corrada, on brief, for appellant.

Thomas F. Klumper, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant U.S. Attorney, Chief, Criminal Division, were on brief, for appellee.

Before Torruella, Circuit Judge, Lipez, Circuit Judge, and Zobel,[*] District Judge.

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TORRUELLA, Circuit Judge.

Following a criminal trial, a jury convicted defendant-appellant Jose A. Otero-Mendez ("Otero-Mendez") of (1) aiding and abetting an attempted carjacking, in violation of 18 U.S.C. §§ 2119(2) and (3), and (2) aiding and abetting the use and carrying of a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and (2). On appeal, Otero-Mendez challenges several elements of the convictions, including: (1) the district court's denial of his motion for acquittal; (2) various evidentiary rulings of the district court; (3) the jury instructions given by the district court; and (4) the applicability of the federal carjacking statute to Puerto Rico. We affirm.


In the late evening hours of April 4, 1996, Otero-Mendez, together with four companions, was driving his car in the San Juan metropolitan area. Next to him, in the passenger's seat, was Giovani Castro-Ayala ("Castro-Ayala"). In the rear seat, Jomary Aleman-Gonzalez ("Aleman-Gonzalez") sat in the middle with Hanson Wilson-Millan ("Wilson-Millan") to her left and Javier Betancourt ("Betancourt") to her right.

As they were returning home, a white Nissan 300ZX ("the 300ZX") automobile passed them. Previously, Otero-Mendez, Wilson-Millan, and Betancourt had discussed finding new wheel rims for Otero-Mendez's car. Upon seeing the 300ZX, they decided that they would forcibly take its wheel rims, so Otero-Mendez turned his car around and followed the 300ZX. When the 300ZX stopped in front of a residence, Otero-Mendez pulled up next to it. Betancourt and Wilson-Millan got out of the car, pulled out their weapons, and approached the 300ZX. Shots were fired by Betancourt, Wilson-Millan, and the driver of the 300ZX. Hit by multiple gunshots, the driver of the 300ZX died. Then, both Betancourt and Wilson-Millan got back into appellant's car. Appellant took Betancourt, Aleman-Gonzalez, and Castro-Ayala to a local hospital because Betancourt had also been shot. He subsequently died.

A few days after the incident, appellant, having dyed his hair and using eyeglasses and a fictitious name, left Puerto Rico through the Aguadilla Airport. He was subsequently apprehended in Connecticut and transferred to Puerto Rico where he was indicted. He was then convicted of aiding and abetting an attempted car jacking and aiding and abetting in the use of a firearm.


Appellant moved at the end of his trial for an acquittal, claiming that the government failed to prove its case beyond a reasonable doubt. In regard to the car jacking conviction, appellant contends the government did not meet its burden of proof in two ways: (1) the government did not prove that the 300ZX had been transported or shipped in interstate or foreign commerce (the "jurisdictional element" of 18 U.S.C. § 2119); and (2) the government failed to show that appellant had the requisite intent under 18 U.S.C. § 2119. In regard to the weapons conviction, appellant argues that the government failed to prove the charge beyond a reasonable doubt.

When addressing sufficiency of the evidence claims, we review the evidence in the light most favorable to the prosecution, and review de novo the district court's determination that the jury reasonably found each element of the crime to have been proven beyond a reasonable doubt. See United States v. Colon-Munoz,

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192 F.3d 210, 219 (1st Cir. 1999), cert. denied, 529 U.S. 1055 (2000); see also United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). Our role in this review is limited: "An appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests." United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir.), cert. denied, No. 01-6313, 122 S.Ct. 414 (U.S. Oct. 15, 2001). We find that the prosecution did present sufficient evidence on all of the challenged points to allow a reasonable jury to find the defendant guilty.

A. Jurisdictional element of § 2119

Otero-Mendez argues that the government failed to prove that the car involved had been transported, shipped, or received in interstate or foreign commerce. The jurisdictional element of 18 U.S.C. § 2119 requires that the government prove that the car in question has been moved in interstate commerce, at some time. See United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir. 1994). We find that the testimony of FBI Agent Thomas Oates satisfied the jurisdictional element.

Agent Oates testified that all automobiles arrive by ship into Puerto Rico and that he was unaware of any automobiles manufactured in Puerto Rico. This testimony went unchallenged. In United States v. Lake, a police officer testified that no motor vehicles are manufactured in the U.S. Virgin Islands and all cars must be shipped into the territory. 150 F.3d 269, 273 (3d Cir. 1998). The Third Circuit held this testimony to be sufficient to establish the jurisdictional element of 18 U.S.C. § 2119. Id. The court also noted that it was reasonable for the district court judge to admit this testimony as within the personal knowledge of the witness. Id. Like the U.S. Virgin Islands, Puerto Rico is an island and not a particularly large one. It is entirely reasonable that a federal agent working in Puerto Rico would know about the lack of any manufacturing facilities for cars on the island. Therefore, the district court acted within its discretion when admitting Agent Oates' testimony, and a reasonable jury could conclude on the basis of his testimony that the 300ZX had been transported in interstate or foreign commerce.1

B. Intent element of § 2119


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