U.S. v. Mercado
| Decision Date | 16 June 2005 |
| Docket Number | No. 04-1656.,04-1656. |
| Citation | 412 F.3d 243 |
| Parties | UNITED STATES, Appellee, v. Luis MERCADO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Christopher R. Goddu, with whom Edward C. Roy, Jr. and the Federal Defender's Office were on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Peter F. Neronha, Assistant United States Attorney, were on brief, for appellee.
Before LIPEZ, Circuit Judge, STAHL, Senior Circuit Judge, and
Following a two-day trial, a jury convicted defendant Luis Mercado of being a felon in possession of a firearm, 18 U.S.C. § 922(g). The district court sentenced him to 120 months in prison and three years of supervised release under the then-mandatory United States Sentencing Guidelines. He now appeals his conviction, assigning error to the cross-examination of a defense witness regarding her delay in coming forward with allegedly exculpatory information, and to the district court's refusal to instruct the jury on "fleeting" possession. For the first time on appeal, Mercado also challenges his sentence under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Finding these claims unavailing, we affirm.
"Because this appeal follows a conviction, we recite the facts in the light most favorable to the verdict." United States v. Medina-Martinez, 396 F.3d 1, 3 (1st Cir. 2005).
On the night of February 14, 2003, two plainclothes police officers on patrol drove by 7 Bodell Avenue, part of the Hartford housing project in Providence, Rhode Island. The officers, Detective Oscar Perez and Officer Thomas Zincone, observed a black Buick and a red Chevy Astro van parked side by side in the parking lot in front of the building, with a group of eight to ten men in and around the vehicles. Perez and Zincone pulled into the well-lit parking lot and got out of their car to investigate. Perez saw Mercado standing between the Buick and the van with a chrome-colored gun in his hand. Perez alerted Zincone to the gun, then yelled "Police," and told Mercado to drop the gun. Rather than complying, Mercado reached through the open door of the van for a leather jacket and tried to stuff the gun into the jacket's pocket. When Perez started to approach Mercado, however, Mercado fled, dropping the gun and the jacket. Perez then picked up the gun for safekeeping while Zincone pursued Mercado, catching him within a few feet of the van. After a brief struggle, the officers arrested Mercado and took him into custody.
Once Mercado was in custody, Perez checked the gun—a.22-caliber semiautomatic pistol—and determined that it was loaded with nine rounds of ammunition. Perez also recovered the jacket into which Mercado had attempted to put the gun. In one of the jacket pockets, the officers found paperwork bearing Mercado's name.
A grand jury indicted Mercado on one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(e). To be convicted under § 922(g), a defendant (1) must have previously been convicted of a crime punishable by a term of imprisonment exceeding one year, and (2) have knowingly and intentionally possessed, (3) in and affecting commerce, (4) a firearm. Mercado stipulated to elements (1), (3), and (4)—namely, that he had a prior felony conviction, and that the semiautomatic pistol recovered at the scene had moved in or affected interstate commerce and was a firearm. The only issue at trial was therefore whether Mercado had possessed the firearm.
During the two-day jury trial, officers Zincone and Perez testified to the events described above for the prosecution. Mercado then presented a mistaken-identity defense, relying on two witnesses, Vinisis Acosta and Rolando Rojas. Rojas was one of the men in the parking lot when the police arrived and Acosta, Mercado's ex-girlfriend of five years, lived at 7 Bodell Avenue in an apartment overlooking the parking lot. They testified that the police arrested Mercado because they found his name in the jacket, not because he had been holding a gun.
After less than a day of deliberation, the jury returned a guilty verdict. The district court then sentenced Mercado under the then-mandatory Guidelines to 120 months in prison, the statutory cap, followed by three years of supervised release.
A. Cross-examination of Acosta
Acosta testified on direct examination that the police initially arrested an unidentified man, and handcuffed Mercado only after they found his name in the jacket and asked which of the men present was Luis Mercado. She also testified that when Officer Perez called her the following day to ask if she had any information about the incident, she falsely told him that she did not because she was afraid of the police. On cross-examination, the prosecutor established that Acosta had dated Mercado for approximately five years, that she still cared about him, and that she remained in regular contact with him after his arrest. The prosecution then attempted to impeach Acosta by asking why she had not come forward earlier with exculpatory information about her ex-boyfriend, for whom she still cared:
....
Q: Ma'am, at some point you knew that the state was [also] bringing charges against the Defendant arising from what happened on February 14, 2003?
....
A: Yes.
....
Q: And you knew that there were proceedings going on in state court arising from what happened on February 14, 2003, correct?
....
....
The Government also returned to this theme in its closing argument, asking the jury to consider why a witness with exculpatory information about someone she cared for would wait nine months to come forward.
Mercado timely objected to the questions about state charges on the ground that the The court asked what the state charge was, and the Government responded that
[i]t's the same charge. [The] point is that we know that in the state charge of possessing this gun ... there were bail hearings, there were violation hearings. I don't intend to get into the nature of those hearings, but my point is that this is a woman who could come forward and say something and presumably doesn't do it in various court proceedings over various months.... So if you have this information, why aren't you coming forward? It's clearly relevant in this incident.
The court then overruled Mercado's objection and allowed the questioning on state charges, so long as the Government clarified that both charges arose from the same incident. Before closing arguments, the court gave a limiting instruction to the jury on the use of this testimony, emphasizing that the state charges and proceedings were only relevant to "action or inaction by Ms. Acosta" and should have "absolutely no bearing on the determination you make in this case."
Mercado now mounts two challenges based on the Acosta cross-examination. First, he alleges prosecutorial misconduct in the government's representation that there had been bail and violation hearings in connection with the state court charges, claiming that there were no such proceedings at which Acosta could have testified. Second, Mercado asserts that the references to state charges were impermissible under Federal Rule of Evidence 403. We consider these arguments in turn.
Although Mercado objected to the references to state charges and proceedings at trial, his objections were not based on the prosecutorial misconduct claim he raises on appeal. "It is well established that an objection on one ground does not preserve appellate review of a different ground." Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672 (1st Cir.2000). Our review is therefore only for plain error. See United States v. Moran, 393 F.3d 1, 15 (1st Cir.2004). To prevail under this standard, Mercado must show that "(1) an error occurred, (2) the error was clear or obvious, (3) the error affected his substantial rights, and (4) the error also seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Medina-Martinez, 396 F.3d at 8.
Mercado assigns error to the prosecutor's representation that there had been bail and violation hearings on the related state charges. He contends that the state court's docket demonstrates that there were no such hearings at which Acosta could have testified, and that the prosecutor therefore could have no good-faith basis for asserting otherwise. Although the state court's docket is not part of the record in this case, Mercado urges us to take judicial notice of it, emphasizing that courts are "entitled to take notice of the records of relevant court proceedings." United States v. Florentino, 385 F.3d 60, 65 (1st Cir.2004), ...
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