U.S. v. Carrillo-Figueroa, CARRILLO-FIGUERO

• Decision Date: 11 March 1994
• Docket Number: D,CARRILLO-FIGUERO,No. 93-1555,93-1555
• Citation: 34 F.3d 33
• Parties: UNITED STATES, Appellee, v. Hector M.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 33

34 F.3d 33

UNITED STATES, Appellee, v. Hector M. CARRILLO-FIGUEROA, Defendant, Appellant.

No. 93-1555.

United States Court of Appeals First Circuit.

Heard March 11, 1994.

Decided Sept. 14, 1994.

Gustavo Adolfo del Toro, by Appointment of the Court, for appellant.

Jeanette Mercado Rios, Asst. U.S. Atty., with whom Guillermo Gil, U.S. Atty., and Jose A. Quiles Espinosa, Senior Litigation Counsel, U.S. Attorney's Office, were on brief for appellee.

Before CYR and STAHL, Circuit Judges, and PIERAS, ^* Senior District Judge.

PIERAS, Senior District Judge.

Defendant-appellant, Hector M. Carrillo, appeals his conviction for robbing and placing the life of a postal inspector in jeopardy by using a dangerous weapon. Carrillo bases his appeal on two grounds. He argues that his conviction violates the Double Jeopardy Clause of the Fifth Amendment and that it resulted from the inappropriate admission of prejudicial evidence by the trial court. Carrillo also appeals the sentence imposed by the district court following his conviction. Concluding that Carrillo's conviction does not violate the Double Jeopardy Clause and that the district court committed no error in admitting evidence during the trial or in imposing the sentence, we affirm.

I. Factual Background

We recount the evidence in the light most favorable to the prosecution. United States v. Mena-Robles, 4 F.3d 1026, 1028 (1st Cir.1993) (citing United States v. Alvarez, 987 F.2d 77, 79 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 147, 126 L.Ed.2d 109 (1993)). The facts are to the effect that on July 27, 1992, at approximately 8:30 p.m., Ivette O'Neill, a United States Postal Inspector, was driving home from work in a government On November 25, 1992, a Federal Grand Jury returned a true bill against the appellant. He was arraigned on December 2, 1992, and entered a plea of not guilty as to all three counts in the indictment. The three-count indictment charged appellant with unlawfully assaulting, resisting, opposing, impeding, intimidating or interfering with Postal Inspector Ivette O'Neill while she was engaged in her official duties and with the use of a revolver. The indictment further charged the appellant with the theft of the United States Postal vehicle which was within the lawful charge, custody and control of Inspector O'Neill.

vehicle assigned to her. Inspector O'Neill was on twenty-four hour call and carried a government issued beeper, cellular phone, and car radio. While stopped at an intersection, a man approached Inspector O'Neill, put a revolver to the left side of her head, told her that he was holding her up, and ordered her to exit the vehicle. The man then drove off with the car. As soon as he drove off, Inspector O'Neill telephoned the postal office to inform them of the robbery. She also informed the robber, via the stolen car's radio, that the vehicle he had taken was a vehicle belonging to the United States and that his action constituted a federal offense. The day after the robbery, the stolen vehicle was found in a parking lot near appellant's residence and not far from the intersection at which the robbery had taken place. The vehicle was in a disheveled, dismantled state. A bulletproof vest, a cellular telephone, a radio, a narcotics kit, and the vehicle's blue emergency revolving lights were missing from the car. The postal inspector assigned to investigate the case received information that shortly after the incident, the appellant, also known as "El Roquero," had attempted to sell a blue bulletproof vest in the neighborhood where Inspector O'Neill was robbed. It was also discovered that appellant had previously been arrested by Puerto Rico police and charged with the theft of a motor vehicle. The postal inspector obtained appellant's photograph from the Puerto Rico police department and prepared a photospread with the purpose of showing it to Inspector O'Neill. The postal inspector showed Inspector O'Neill the photospread on November 12, 1992, and she identified appellant as her assailant by picking out his photograph from among the others in the photospread.

A jury trial commenced on January 8, 1993. The case was submitted to the jury at around noon on January 12, 1994; however, about five hours later the jury sent a note to the judge informing him that they were unable to reach a verdict. Upon receipt of the jury's note, the judge called the jury and the parties into the courtroom. The judge then instructed the jury that they need not agree on all counts charged in the indictment and that they might wish to consider whether they agreed on one or more counts. The judge instructed the jury to go back to the jury room for further deliberation. At approximately 6:15 p.m., however, the jury sent the judge a second note informing him that they were unable to reach a verdict. ¹ Before calling the jury back into the courtroom, the judge summoned counsel for the parties to ask for their suggestions on the matter. Appellant's counsel asked the court to declare a mistrial. The government opposed the request for a mistrial, and suggested instead that the jury be allowed to go home and return in the morning for further deliberations. Counsel for the government also suggested that the jury be given an "Allen" charge. The judge agreed that an "Allen" charge could prove helpful. However, when the judge called the jury and asked them whether they thought they could reach a verdict if allowed to go home and return the following morning, the foreperson responded in the negative. The rest of the jurors agreed with him by raising their hand. The judge then granted the mistrial requested by the appellant and dismissed the jury. Immediately thereafter, and before discharging counsel for the parties, the judge set a new trial for thirteen days later.

On January 20, 1993, five days before the new trial was scheduled to begin, appellant filed a motion of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. ²

2] In his motion, appellant argued that the evidence presented at trial was insufficient for a conviction and argued that a retrial was proscribed by the Fifth Amendment's Double Jeopardy Clause. In the event that the trial court decided to deny his motion, the appellant asked the court to postpone the jury trial so that he could have an opportunity to appeal the denial of his motion. The trial court did not rule on appellant's motion until the day of the commencement of the second trial. After entertaining counsel's argument on the subject out of the presence of the jury, the court made a ruling from the bench denying appellant's motion for acquittal and finding that the government had presented sufficient evidence for a conviction. The court also denied appellant's request for a continuance of the trial. The trial commenced as scheduled on January 25, 1993, and lasted three days. On the second day of trial, at the conclusion of the government's case, the appellant made a new motion for judgment of acquittal which the court denied. The case was submitted to the jury on the third day of trial. The jury delivered its verdict on the same day finding the appellant not guilty on counts one and two of the indictment, but guilty on count three. After asking for an extension, which the court granted, the appellant filed a final motion for judgment of acquittal on February 22, 1993. The court denied appellant's motion on April 16, 1993.

On May 14, 1993, the court sentenced the appellant to a term of imprisonment of 121 months and a term of supervised release of five years. This appeal was timely filed on May 20, 1993.

II. Discussion

A. The Double Jeopardy Claim

Appellant assigns error to the trial court's denial of his motion for judgment of acquittal filed after the first jury had been discharged, but before the commencement of the second trial. ³ Appellant does not ask us to review the correctness of the trial court's decision to deny his motion of acquittal, but instead asks us to vacate his conviction as he alleges that his second trial violated the Double Jeopardy Clause of the Fifth Amendment. Appellant argues that the second trial put him in double jeopardy because he was entitled to a judgment of acquittal at the end of the first trial. Pitching his argument on Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), he argues that the trial court's failure to recognize the insufficiency of the evidence presented against him in the first trial and to provide him with an opportunity to appeal the court's denial allowed the government to "take two bites out of the apple" and obtain a conviction against him which it could not have obtained at the first trial.

In essence, appellant argues that the Double Jeopardy Clause precluded his second trial due to the fact that the government failed to present enough evidence to convict A defendant in a criminal proceeding is protected by the Double Jeopardy Clause against multiple punishments and repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (citing United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). However, the Double Jeopardy Clause is not an absolute bar to successive trials. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). "The protection embodied in the Double Jeopardy Clause is a personal defense that may be waived or foreclosed by a defendant's voluntary actions or choices, including a request for or effectual consent to a mistrial." United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.), cert. denied, Aguilar-Aranceta v. United States, --- U.S. ----, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992) (citing United States v. Dipietro, 936 F.2d 6, 9 (1st Cir.1991)). If a mistrial is declared at the request...