United States v. Vázquez-Rosario
| Decision Date | 17 August 2022 |
| Docket Number | 20-1087 |
| Citation | 45 F.4th 565 |
| Parties | UNITED STATES of America, Appellee, v. Jose VÁZQUEZ-ROSARIO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
José B. Vélez Goveo, with whom Vélez & Vélez Law Office was on brief, for appellant.
Francisco A. Besosa-Martinez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Appellate Chief, were on brief, for appellee.
Before Barron, Chief Judge, Howard and Gelpí, Circuit Judges.
A jury convicted Defendant-Appellant José Vázquez-Rosario of one count of false impersonation of an employee of the United States in violation of 18 U.S.C. § 912.1 The indictment and corresponding conviction stem from Vázquez's actions at a traffic stop where he falsely represented to a police officer that he was an agent of the Federal Bureau of Investigation ("FBI"). We affirm.
We discuss the facts as they were established at trial. On November 29, 2018, three police officers with the Guaynabo Municipal Police Department -- Sergeant Yacira Martínez, Officer Orlando Báez, and Officer Frankyn Nieves -- pulled over a black Lincoln that committed an illegal lane change and ran a red light in Guaynabo, Puerto Rico. When the police officers approached the vehicle, they observed a woman in the driver's seat and a man, later identified as Vázquez, in the passenger seat. Officer Báez informed the driver of the reason for the stop and asked for her license and registration. The driver produced her license, but the registration she produced was not for the current year. Officer Báez informed her that this would be an additional traffic violation and began to return to the police vehicle to issue the tickets. At that moment, Vázquez opened his car door, stepped out of the car, and told the police officers in an agitated manner that he was a federal agent who investigated corrupt police officers. He told the police officers conducting the traffic stop that he was going to take down their information and request an investigation. Vázquez told them that he had handcuffs for municipal police officers and asked Sergeant Martínez whether the last name "Martínez" sounded familiar to her, a reference to former Police Commissioner Martínez whom Vázquez later claimed he was investigating. At some point during this exchange, Officer Báez did indeed issue two tickets to the driver totaling $75 -- one for the illegal lane change and the other for the incorrect registration.
Vázquez then told Sergeant Martínez that he wanted to speak with the police officers' supervisor, the Commissioner of Police of Guaynabo. Sergeant Martínez called Commissioner Víctor Franco-Rodríguez to explain the situation to him and request that he come to the traffic stop. While she was on the phone, Vázquez approached her and spoke loudly, asserting that he had a federal agent code name as well as a contact agent that she could presumably contact to verify his claims. Commissioner Franco arrived at the scene of the traffic stop shortly after to speak with Sergeant Martínez and Vázquez. He first pulled Sergeant Martínez aside to learn more about the situation that had transpired. As Commissioner Franco did so, Vázquez began speaking loudly to him, stating that he investigated Guaynabo police officers and Police Commissioner Martínez and that he was FBI. He mentioned again that he had handcuffs for the police officers on the scene and said that he was going to investigate them as well.
Commissioner Franco then began to speak with Vázquez directly. He asked for Vázquez's FBI credentials, to which Vázquez responded that he didn't have to show him anything. Commissioner Franco then decided to contact an FBI agent he knew, Guillermo González, to confirm that Vázquez was an FBI agent.2 Agent González arrived at the scene and was informed of the unfolding situation by Commissioner Franco. He described Vázquez as "agitated and aggressive." When Agent González began speaking with Vázquez, the latter declined to identify himself as an FBI agent and instead stated that he worked for the FBI and gave Agent González the names of two other agents to corroborate this fact. Agent González decided to contact one of the two agents, Miguel Vega, and confirm Vázquez's current status with the FBI. Agent Vega confirmed that Vázquez had worked previously as an FBI source and provided information to the agency. Agent González later confirmed that, at the time of the traffic stop, Vázquez was not a paid active source for the FBI. Additionally, Agent González clarified later at trial that FBI sources are not FBI employees or agents, and are made aware of this fact before they start. After that conversation, Agent González asked the Guaynabo police officers to place Vázquez under arrest and transport him to the FBI office.3
Following a grand jury indictment, Vázquez pled not guilty to one count of false impersonation of an employee of the United States in violation of 18 U.S.C. § 912. The case proceeded to trial in August 2019 and, following a three-day trial, a jury found Vázquez guilty. The district court sentenced Vázquez on November 13, 2019 to six months of imprisonment. The sentence imposed is not at issue in this appeal. The timeliness of this appeal, however, is. We turn to that issue first before addressing the remainder of Vázquez's claims.
As a threshold matter, we must determine whether the appeal was timely. The timeline is as follows: Following the guilty verdict, Vázquez was sentenced on November 13, 2019 and the district court entered final judgment on November 21, 2019. The Federal Rules of Appellate Procedure dictate that criminal defendants have fourteen days to file a notice of appeal after the entry of judgment, making the deadline for Vázquez to appeal December 5, 2019. Fed. R. App. P. 4(b)(1)(A)(I). On November 25, 2019, Vázquez filed a motion for reconsideration of the district court's denial of a sentence of probation. The next day, November 26, 2019, the district court ordered the government to respond to the motion by December 6, 2019. The government responded by the deadline. On December 26, 2019, the district court denied the motion for reconsideration. On December 31, 2019, Vázquez filed his notice of appeal at the district court.
The government argues that Vázquez's appeal is untimely because a motion for reconsideration does not automatically extend the fourteen-day period to file a notice of appeal, and Vázquez neglected to file a motion requesting an enlargement of the time to file an appeal. Cf. United States v. González-Rodríguez, 777 F.3d 37, 38 (1st Cir. 2015) ().
It is well settled that a district court loses jurisdiction over a case upon the filing of a notice of appeal, United States v. Naphaeng, 906 F.3d 173, 177 (1st Cir. 2018), though we noted in González-Rodríguez "that the filing of such a notice of appeal does not deprive the district court of jurisdiction over a post-judgment motion properly before it." 777 F.3d at 42 (citing United States v. Ortiz, 741 F.3d 288, 291 n.1 (1st Cir. 2014) ). Under Federal Rule of Appellate Procedure 4(b)(4), a district court may extend the time to file a notice of appeal "for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)" "[u]pon a finding of excusable neglect or good cause."4 This thirty-day extension is in addition to the fourteen-day period allowed by Federal Rule of Appellate Procedure 4(b)(1)(A)(I).
Here, the district court provided no clear indication that it had extended the deadline to file a notice of appeal beyond the fourteen-day period.5 However, this problem is not fatal to our consideration of Vázquez's appeal. The deadline provided by Federal Rule of Appellate Procedure 4(b) is not jurisdictional, see United States v. Reyes-Santiago, 804 F.3d 453, 457-58, 478 (1st Cir. 2015) ; United States v. Lantis, 17 F.4th 35, 38 n.3 (10th Cir. 2021), and, in any event, because we find that Vázquez's appeal fails on the merits, we may assume timeliness arguendo and indeed do so here. See United States v. Texeira-Nieves, 23 F.4th 48, 52–53 (1st Cir. 2022) ; Tacuri-Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021) ; United States v. Norman, 458 F. App'x 105, 107 n.5 (3d Cir. 2012) (unpublished). We therefore proceed seriatim to the merits of Vázquez's appeal.
The bulk of Vázquez's arguments on appeal boil down to the insufficiency of the evidence offered for the jury to convict him. To resolve the same, we must first establish the correct standard of review, on which the parties disagree. Vázquez states in his brief that we typically review a sufficiency claim de novo, and determine whether any rational jury could have found the defendant guilty beyond a reasonable doubt, United States v. Cortes-Caban, 691 F.3d 1, 12 (1st Cir. 2012), but also concedes that where the defendant has failed to object below, the appellate court reviews only for plain error. United States v. Theodore, 354 F.3d 1, 8 (1st Cir. 2003). The government, however, advances that when a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 is not preserved for appeal because it was not made below, the defendant has "forfeit[ed] the benefit of the customary standard of review, thereby negating any claim of evidentiary insufficiency unless affirming the conviction would work a ‘clear and gross injustice.’ " United States v. Castro-Lara, 970 F.2d 976, 980 n.2 (1st Cir. 1992) (quoting United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988) ).6
Our precedent unequivocally dictates the outcome that the government urges. It is clear that Vázquez did not make any Rule 29 motion below, waived...
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