U.S.A v. Castro-davis, 08-2108
| Decision Date | 16 July 2010 |
| Docket Number | No. 08-2108,08-2109.,08-2108 |
| Parties | UNITED STATES of America, Appellee,v.Félix Alberto CASTRO-DAVIS, a/k/a Belto, a/k/a Bertito, Defendant, Appellant.United States of America, Appellee,v.Félix Gabriel Castro-Davis, a/k/a Gaby, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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Alan D. Campbell, Andrew S. Crouch, for appellant Félix Alberto Castro-Davis.
Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.
Before TORRUELLA, Circuit Judge, BALDOCK,* Senior Circuit Judge, and LIPEZ, Circuit Judge.
This is an appeal from the convictions of Defendants-Appellants Félix Alberto Castro-Davis (“Alberto”) and Félix Gabriel Castro-Davis (“Gabriel”) (collectively “defendants”).1 Alberto and Gabriel were found guilty of conspiracy to commit carjacking, in violation of 18 U.S.C. § 371, aiding and abetting a carjacking resulting in death, in violation of 18 U.S.C. §§ 2119(3) and 2, and using or carrying a firearm in connection with a carjacking, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. They appeal their convictions based on the sufficiency of the evidence, the introduction of defendants' statements against co-defendants, the making of prejudicial statements by the prosecution, and flawed jury selection and sentencing procedures.
After careful consideration, we affirm the convictions of both defendants, but vacate their sentences and remand to the district court.
On the morning of July 15, 2006, Héctor Pérez-Torres (“Pérez”) left his home in Caguas, Puerto Rico at 11:00 am to drive his bolita route. 3 Pérez had been a bolitero for many years, and was driving his wife's 1986 Mazda 626 along his usual route, where he would stop to collect lottery bets. He was seen later that day, around 3:00 or 4:00 p.m., at the Farmacia San Antonio, which was a regular stop on his route, by pharmacist Brenda García-Medina (“García”). The pharmacy is located in and adjacent to a section of the town called El Salchichón, and connected to it by means of a secluded road, which is surrounded by dense vegetation. Later, Pérez's car was seen driving through El Salchichón, although witness Jannette Ocasio-Ortiz (“Ocasio”) testified that the car she recognized as belonging to Pérez was not being operated in the usual way. While Pérez would ordinarily drive very slowly and honk his horn to allow those who wished to play the bolita to approach him, on July 15, 2006 the car was driving very quickly. Ocasio also testified that, although she could not see who was driving the car, she noticed that the silhouette of the driver was too tall to be Pérez.
Later that evening, José Figueroa-Cartagena (“José”) was in his home when he received a telephone call from his sister, Neliza. Neliza asked José to step outside, because defendant Gabriel wanted to speak with him. José complied and spoke with Gabriel, who offered José money to watch Pérez's car, with Pérez inside. José agreed and allowed Alberto, who was driving Pérez's Mazda, to park the car underneath a tent José used in his automotive repair business. Pérez was in the back seat.
Alberto and Gabriel proceeded to search the car, and José testified that he witnessed Alberto remove a revolver from the car and place it on the roof. Though defendants did not appear to remove anything else from the car, José testified that he overheard them having a discussion about an ATM card they found on Pérez's person. José also testified that Alberto bragged to him about the speed of the car, and told him that they had taken it “policeman style.” When asked what that meant, José explained that he understood this phrase to mean “that they stopped the car ... with the weapon, and they said, this is the police.”
Alberto and Gabriel then left the area to attempt to withdraw money using Pérez's ATM card, leaving José to watch over Pérez, who remained in the back of his Mazda.
Alone with Pérez, José fielded several requests from his captive which included rolling down the windows and getting him a drink of water. At this point, José noticed that Pérez was handcuffed.
While guarding Pérez, José placed a call to defendants, and spoke with Neliza, who assured him that they would return soon.4 Shortly thereafter, Pérez attempted an escape, which resulted in a struggle between him and José. In the course of the struggle, Pérez shouted: “Help, they want to kill me.” As José fought with Pérez, Alberto, Gabriel, and Neliza arrived. Alberto and Gabriel helped subdue Pérez. Hearing the ruckus, two neighbors, Laura Ramos-Ortiz (“Ramos”) and Celestina Montañez-Borges, approached to inquire what was happening. José told them not to worry and not to call the police. Then, Neliza again told the two neighbors to leave. When they attempted to move in closer, Neliza and Gabriel closed a gate that divided the properties to prevent the neighbors' access.
After this incident, which occurred approximately fifteen to twenty minutes after Pérez was left in José's custody, José drove away to a gas station. There, he washed the mud off of his car and drank a beer. Gabriel and Alberto arrived with Neliza soon thereafter in two separate vehicles. Neliza exited her Grand Vitara sport utility vehicle, to check on José. Alberto, Gabriel, and Pérez remained in Pérez's Mazda. José testified that he saw that Gabriel had Pérez in a headlock. After briefly speaking with José, Alberto, Gabriel and Neliza left the gas station in the manner they arrived, and drove off in the same direction.
Later that night, as she was falling asleep, Pérez's wife, Luz Rosario-García (“Rosario”), was startled by the sound of intruders. She investigated and found a young man, whom she described as tall and skinny, in her home. The man called Rosario by name and told her to calm herself. He also stated that if she shouted, she would get both herself and the man killed. Rosario then encountered a second intruder, whom she described as tough-looking, and wearing a mask and gloves. Rosario testified that she observed that the second intruder had a firearm, though she did not know what kind it was. The intruders asked for her ATM card, which she procured for them. They also asked for her personal identification number to activate the card, and when Rosario began to recite the number, which was the same as her husband's, the second intruder indicated that he already knew it. Rosario testified that the intruders then asked for access to her husband's moneybox, and when she told them that they would have to wait for Pérez to return, they informed her that they had kidnaped him. After the intruders left, Rosario found that they obtained entry to her home by using her husband's keys, which they abandoned.
The next day, July 16, 2006, José saw Neliza and Gabriel again at his home. Gabriel stated that they “had to kill him,” referring to Pérez, because “it got real difficult for us and he struggled a lot.” Gabriel explained that, although Alberto had a gun, they chose to asphyxiate Pérez with duct tape, because they did not want to get the gun dirty. José testified that both Neliza and Gabriel instructed him to speak with the neighbors that attempted to intervene on the previous day, and to secure their silence, if necessary, with threats.
Pérez's body was found on July 17, 2006 in the backseat of his Mazda in Caguas. The cause of death was mechanical asphyxiation from the duct tape on his face. State agents contacted José regarding the events outside his home. Although he did not cooperate at first, he later agreed to speak candidly about the incident.
Agents from the Federal Bureau of Investigation (“FBI”) presented Rosario with a spread of photographs, the third depicting Gabriel. She stated that she recognized the man in the third photo from her neighborhood. She also stated that he resembled the unmasked intruder in her home, even though he appeared thinner in person than in the photograph. Documenting her impressions for the agents, she wrote and signed a note that stated: “With reference to number three, he looks alike, but I cannot identify whether this is the young man who entered my home.” 5
FBI agents arrested Gabriel and interviewed him. When asked about his relationship to Neliza, Gabriel stated that she was his girlfriend. Agents questioned Gabriel about the murder of Pérez, but Gabriel denied any knowledge or involvement. When asked why he had been seen fighting with the victim, Gabriel stated that Neliza's neighbors were trying to frame him. The agent pointed out to Gabriel that he had not said where the fight took place. Gabriel continued to deny everything.
On April 25, 2007, during his pre-trial incarceration, Alberto spoke to his mother, Carmen Davis, over the telephone. The conversation was recorded. During the course of this conversation, Alberto told his mother that “Neliza is the one who is talking,” and “That bitch is going to fuck us over.” As to Gabriel, he stated, presumably in reference to the police:
On April 25, 2007, a grand jury in Puerto Rico returned a three-count indictment charging all three defendants with one count each of conspiracy to commit carjacking, in violation of 18 U.S.C. § 371; carjacking, in violation of 18 U.S.C. §§ 2119(3) and 2; and the use and carrying of a firearm during a violent crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.
The case proceeded to a jury trial on March 5, 2008. During the jury selection process, the district court judge asked counsel whether there were any challenges to potential jurors for cause. After two for-cause challenges, the judge asked whether co...
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