U.S. v. Cruz-Diaz

• Decision Date: 18 December 2008
• Docket Number: No. 07-1535.,No. 07-1534.,07-1534.,07-1535.
• Citation: 550 F.3d 169
• Parties: UNITED STATES of America, Appellee, v. Angel Zamora CRUZ-DÍAZ, Defendant, Appellant. United States of America, Appellee, v. José Alfredo Ayala-Colón, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

550 F.3d 169

UNITED STATES of America, Appellee, v. Angel Zamora CRUZ-DÍAZ, Defendant, Appellant.

United States of America, Appellee, v. José Alfredo Ayala-Colón, Defendant, Appellant.

No. 07-1534.

No. 07-1535.

United States Court of Appeals, First Circuit.

Heard October 30, 2008.

Decided December 18, 2008.

Juan F. Matos De Juan for appellant José Alfredo Ayala-Colón.

Raymond Rivera Esteves for appellant Angel Zamora Cruz-Díaz.

Mariana E. Bauzá, Assistant United States Attorney with whom Rosa Emilia Rodriguez-Vélez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

After a six-day trial, a jury convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-Colón (Ayala) of conspiring to rob a federally insured bank, 18 U.S.C. § 371 (Count 1), aiding and abetting a bank robbery by use of a dangerous weapon, 18 U.S.C. § 2113(a), (d) (Count 2), and aiding and abetting the use of a firearm during and in relation to a crime of violence, here, a bank robbery, 18 U.S.C. § 924(c)(1)(A) (Count 3). The district court sentenced Cruz to 183 months' imprisonment and Ayala to 168 months' imprisonment. Both Cruz and Ayala appeal their convictions.

Cruz presents three claims. First, he argues that insufficient evidence supported his conviction for aiding and abetting the use of a firearm during a crime of violence. He contends that the government failed to adduce evidence sufficient to prove that he carried a "real" firearm as required by § 924(c). Cruz's second and third claims allege prosecutorial misconduct and erroneous jury instructions.

Ayala presents only one claim, arguing that the court erred when it admitted his codefendant's out-of-court statement into evidence. This error, he contends, violated his Sixth Amendment Confrontation Clause rights. After review of these claims, we affirm both convictions.

I. Facts

The facts stated here, which are relevant to Cruz's sufficiency claim, are presented in the light most favorable to the jury's verdict. United States v. Cruz-Rodríguez, 541 F.3d 19, 25 (1st Cir.2008). We add more facts where necessary to our discussion of the other appellate claims.

On February 17, 2006, two armed men entered a bank in Puerto Rico shouting, "This is a robbery!" One of the men, later identified as Cruz, proceeded to the bank's front counter and demanded the tellers put money in a large, black plastic bag. The other man, later identified as Ayala, shepherded bank employees to the front of the bank. Four bank employees testified that Cruz carried a gun. Collectively, these four employees described the gun as a "silver," "shiny," "nickel plated" "pistol." Two bank employees testified that Ayala carried a gun as well, with one describing it as a "nickel plated," "short barreled" "pistol" and the other describing it as a "silver handgun."

The tellers complied with Cruz's demand, placing money inside the bag. After receiving the money, Cruz and Ayala exited the bank, having been inside between one and two minutes.

The police received information that Cruz and Ayala were traveling in a red Mazda. Shortly thereafter, police officers discovered an abandoned car matching this description. Near the car, they found Cruz and Ayala. A search of the area yielded a black plastic bag containing money from the bank.¹ A search of the red Mazda produced a bullet casing on the passenger's seat. The bullet casing corresponded with a nine-millimeter Luger brand bullet or cartridge. No guns, however, were ever found.

At trial, in addition to introducing testimony from bank employees and police officers, the government introduced a bank surveillance video. The video showed Cruz and Ayala entering the bank brandishing guns. The jury found both defendants guilty on all three counts. We first address the claims presented by Cruz.

II. Discussion

A. Cruz

1. Sufficiency claim

Because Cruz failed to move for a judgment of acquittal on Count 3—for aiding and abetting the use of a firearm during a bank robbery—we review his sufficiency claim for plain error only. See United States v. Díaz, 519 F.3d 56, 63 (1st Cir.2008).² Under the plain error standard, we will not reverse unless the allowing the conviction to stand would result in a "clear and gross injustice." United States v. Pratt, 496 F.3d 124, 127 (1st Cir.2007) (internal quotations omitted).³

Cruz's sufficiency claim focuses on the definition of "firearm." He starts with the premise that a conviction under 18 U.S.C. § 924(c), requires proof that the defendant used a "real" firearm when committing the predicate offense. See United States v. Taylor, 54 F.3d 967, 975 (1st Cir.1995) (noting that "a toy or a replica will not do") (quotation omitted). For purposes of § 924(c), a firearm is defined as:

"(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.⁴ Such term does not include an antique firearm."

18 U.S.C. § 921(a)(3).

Armed with this definition, Cruz argues that no reasonable jury could conclude that he used a "real" firearm in the robbery. He points to two pieces of evidence to support this argument. First, one of the bank employees who testified that Cruz carried a gun later testified on cross-examination that he was not a "gun inspector" and admitted that he could not tell whether the gun Cruz carried was real or a toy. Second, Cruz notes that he confessed to an FBI agent that BB guns had been used in the robbery.

When analyzing Cruz's claim, we must keep certain principles in mind. "Although § 924(c) requires proof that the gun is real, the government's proof need not `reach a level of scientific certainty.'" United States v. Roberson, 459 F.3d 39, 47 (1st Cir.2006) (citation omitted). Descriptive lay testimony can be sufficient to prove that the defendant used a real gun. Id. (citing United States v. Kirvan, 997 F.2d 963, 966-67 (1st Cir.1993)); Taylor, 54 F.3d at 976 (concluding that the evidence was sufficient to prove the gun was real where three eyewitnesses to a bank robbery, who observed the object held by the defendant at close range, testified that it was a gun).

We find no error at all here, much less plain error. The record contains evidence, both direct and circumstantial, sufficient to allow a reasonable jury to conclude that Cruz used a real firearm during the robbery. The direct evidence included the testimony of four bank employees. These employees testified that Cruz held a gun, collectively describing the gun as a "silver," "shiny," "nickel plated" "pistol." These descriptions are consistent with a conclusion that Cruz and Ayala used real guns. In fact, they are nearly identical to the descriptions provided by bank employees who testified in Kirvan. In that case in which one of the witnesses described the item held by the defendant as a "silver," "shiny," "handgun," we held that the government introduced sufficient evidence that the gun used in the robbery was real. 997 F.2d at 966-67. Moreover, none of the witnesses in this case, all of whom had ample time to view the gun, described it as a BB or toy gun. See Taylor, 54 F.3d at 976. In addition to this eyewitness testimony, the government also introduced a surveillance video showing Ayala and Cruz entering the bank and holding what appeared to be weapons. Although the videotape did not give the jury the superior vantage point that the bank tellers had, this additional evidence did allow the jurors to see for themselves what the witnesses had observed.

Finally, the jury also had circumstantial evidence to draw upon in concluding that Cruz possessed a real firearm. Two pieces of evidence stand out. First, the bank employees all responded as if the guns held by both Cruz and Ayala were real, complying with the requests made by the robbers. The jury could have reasonably inferred, based on the reactions from the employees in combination with the eyewitness testimony, that Cruz and Ayala carried real firearms. Second, the police discovered a bullet casing in the vehicle used by Cruz and Ayala that corresponded with a real firearm. In our view, this circumstantial evidence, taken together with the direct evidence recounted above, supported the jury's verdict on Count 3.

Our conclusion that sufficient evidence underlies Count 3 is not undermined by the evidence Cruz directs to our attention —a witness's expressed uncertainty regarding whether the gun Cruz held was real and Cruz's alleged confession to an FBI agent that BB guns were used in the robbery. The wavering testimony of the one bank teller must be placed in context. Three other bank tellers expressed no such uncertainty. As for Cruz's statement to the FBI, it does not merit overturning the verdict. In addition to being self-serving the statement was never admitted into evidence.

2. Prosecutorial Misconduct

Cruz claims that the government committed prosecutorial misconduct during its closing argument, warranting a new trial. Specifically, he maintains that the prosecutor inaccurately recounted the facts in the record and therefore prejudiced the outcome of the case.

Cruz focuses on the prosecutor's statement recapping the testimony of various bank tellers. The prosecutor, Cruz notes, told the jury that the bank tellers testified that Cruz and Ayala carried "firearms."⁵ Cruz argues that this was inaccurate because the tellers never used the term "firearms" in their testimony. Rather, the tellers used the words "pistol" and "handgun" to describe the objects held by Cruz and Ayala. The prosecutor's paraphrasing was prejudicial, Cruz contends, because "[n]ot all handguns are firearms."

Where an improper statement has been made, we typically ask...