U.S. v. Rivera-Rivera

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Howard
• Citation: U.S. v. Rivera-Rivera, 555 F.3d 277 (1st Cir. 2009)
• Decision Date: 09 February 2009
• Docket Number: No. 05-2498.,No. 05-2495.,05-2495.,05-2498.
• Parties: UNITED STATES of America, Appellee, v. José RIVERA-RIVERA, Ramón Sánchez-Rosado, Defendants-Appellants.

555 F.3d 277

UNITED STATES of America, Appellee, v. José RIVERA-RIVERA, Ramón Sánchez-Rosado, Defendants-Appellants.

No. 05-2495.

No. 05-2498.

United States Court of Appeals, First Circuit.

Heard November 7, 2007.

Decided February 9, 2009.

Linda Backiel for appellant Sanchez.

Mauricio Hernández-Arroyo for appellant Rivera.

Timothy R. Henwood, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief for appellee.

Before LIPEZ, BALDOCK^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Appellants José Rivera-Rivera ("Rivera") and Ramón Sánchez-Rosado ("Sánchez") were convicted on three counts stemming from the armed robbery of a lottery ticket business in Caguas, Puerto Rico. Rivera was sentenced to 415 months' imprisonment — more than 34 years — and Sánchez was sentenced to 397 months — just over 33 years. Both sentences included a mandatory minimum term of 25 years for the use of a firearm in relation to a violent federal felony after a previous conviction for the same offense. See 18 U.S.C. § 924(c)(1)(C)(i). By statute, the 25-year term was required to be imposed consecutively to any other sentence. The appellants challenge both their convictions and their sentences. They claim two trial errors: (1) the key witness's in-court identification was tainted by unnecessarily suggestive pretrial encounters, and (2) the government failed to meet its burden of proving that the robbery affected interstate commerce. They also assert multiple flaws in their sentencing, including that the court improperly imposed the 25-year mandatory minimum based on facts not found by the jury beyond a reasonable doubt. We affirm.

I. FACTUAL BACKGROUND

The facts of the robbery, as the jury could have found them, are as follows. Shortly after 8 a.m. on the morning of October 11, 2004, Carmelo Fonseca, the manager of the Muñiz Gallery, a small shopping mall in Caguas, opened both the front and rear entrances to the building, turned on the machines in the mall's game center, and started walking toward the office of the lottery ticket business run by the Gallery's owner, Félix Muñiz. At 8:20 a.m., before the mall was open for customers, two individuals entered the mall through the back entrance. They approached Fonseca and asked him where the lottery machines were located, and then each pulled out a gun. One of them "loaded [his] pistol and charged it," and, after warning Fonseca "not to act like some tough guy, that they would shoot [him]," they directed Fonseca to take them to the lottery business office on the second floor. Although the men told Fonseca not to look at them, he testified that he did not comply and that "every time I had a chance, I looked at them." Fonseca reported that one of the individuals was wearing a white shirt and the other wore a black shirt. On direct examination, Fonseca indicated that both men were wearing sunglasses and hats. On cross-examination, he testified that one of them was wearing dark glasses and the other was wearing a hat. One of the men was carrying a black plastic bag of the type used by retail stores.

Meanwhile, across the hallway from where the three men were having their initial conversation, Dr. Johanna Loyola, an optometrist who had just arrived at her office, noticed the young men with Fonseca and saw that one had a pistol. She immediately called 911 to report a robbery, describing the perpetrators as young men with dark glasses and caps, and also shouted to the mall's maintenance employee, María, to get help because Fonseca was being robbed. In her phone call to the police, Loyola stated that one of the men did not seem tall, but looked strong.

María found a municipal police officer, Juan Soto, outside the mall. Soto went in through the back entrance, which he closed, proceeded to the front of the building, and padlocked the front door. He then called for backup. By this time, the two robbers had taken Fonseca upstairs, where he was forced to open the office safe. Because he was nervous, Fonseca made several attempts before he successfully opened the combination lock. The men then ordered him to get face down on the floor, and they tied his arms and legs with black ties taken from the black bag. They took a cash box containing $8,770 from the safe, and a gun and photographs from Muñiz's desk.

Outside the building, Puerto Rico Police Department officers and municipal officers, including Soto and Caguas officer Eliseo Martínez, had gathered in response to Soto's request for backup and Loyola's call. Soto removed the padlock from the front door and prepared to enter the building. He and Martínez testified that they could see two individuals in the vicinity of Muñiz's office. One wore blue jeans and a white t-shirt, had on dark glasses and was carrying a black bag with shiny lettering; the other wore a black shirt and blue jeans and was holding a fisherman's cap in his right hand. Ignoring Soto's order to halt, the men walked to the end of the hallway, found the back door closed, and then walked back down the hallway trying the doors of the businesses they passed. None were open, and the pair went into the men's restroom at the end of the hall. As they entered the bathroom, they lifted their shirts, and Soto saw pistol butts in their waistbands. The two men — defendants Sánchez and Rivera — came out several minutes later, at which point Martínez arrested them.

In a trash can in the bathroom, Soto found the black bag with the shiny letters, which contained some dollar bills; a metal box; the fisherman's cap he had seen one of the men holding; some black straps; and a .38-caliber revolver belonging to Muñiz. Soto also found two loaded pistols inside a towel dispenser.

Fonseca was released by a municipal police officer and shortly thereafter saw Martínez escorting the defendants, in handcuffs, out of the building. Fonseca testified that he immediately recognized them as the robbers. He saw the defendants again about an hour later at the Caguas municipal police station, where he had gone to file charges. Fonseca testified that he happened to notice them as they walked back and forth inside a holding cell. On cross-examination, Fonseca stated that he also saw them in two locations at the courthouse where the defendants' preliminary hearing was held: in a cell at the district attorney's office and then "standing in front of the judge." Soto testified that Fonseca also saw the defendants briefly as they were being moved from the police station to the patrol car to be transported to the courthouse.

Charges originally were brought against Sánchez and Rivera under local law, but they were later dismissed and the men were charged in a three-count federal indictment. Count One alleged that the defendants aided and abetted each other in committing an armed robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2. Count Two charged the use of a firearm in connection with the robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Count Three charged defendants with being felons-in-possession of a firearm, in violation of 18 U.S.C. §§ 922(g)and 924(a)(2), and alleged that they had been convicted in 1998 for an armed bank robbery.

At trial, Fonseca was asked if the men who robbed him were in the courtroom, and he identified the defendants. When asked by the prosecutor and the court to explain the basis for his conclusion that these were the men, he said that he "recognized them because they were the ones that robbed me." For purposes of Count Three, the felon-in-possession charge, the government and the defendants stipulated that Rivera and Sánchez had a triggering prior felony, and no evidence of the prior conviction was presented to the jury.

At the end of the government's case, the defendants sought suppression of Fonseca's identification testimony on the ground that he had been exposed to unnecessarily suggestive pre-trial confrontations with the defendants. The court refused to suppress the statement identifying the defendants as the perpetrators, but agreed to give the jury a specific instruction on identification procedures. Defense counsel also moved for a judgment of acquittal under Fed.R.Crim.P. 29, claiming that the evidence was insufficient to support a finding of guilt. The court denied the motion, observing that "there is overwhelming evidence of the fact that this robbery took place as testified to by the witnesses." The jury subsequently found both defendants guilty on all three counts.

On appeal, the defendants renew their challenge to Fonseca's in-court identification and also seek reversal of their conviction on Count One, the Hobbs Act charge, on the ground that the government failed to present sufficient evidence that the robbery affected interstate commerce.¹ A reversal on Count One would require reversal on the Count Two firearms charge as well because proof of the Hobbs Act violation is an element of that offense. See United States v. Jiménez-Torres, 435 F.3d 3, 8 n. 1 (1st Cir.2006).

II. IDENTIFICATION

The appellants claim that the district court erred in refusing to suppress Fonseca's in-court identification, which they assert was tainted by his impermissibly suggestive pre-trial encounters with them shortly after the robbery occurred. As described above, Fonseca came into contact with the defendants three or four times before the preliminary hearing that took place on the day of the robbery. It is undisputed that he saw them at the mall shortly after they were arrested and handcuffed, although the precise nature of that encounter was the subject of inconsistent testimony.²

There also is no dispute that the subsequent encounters were unplanned: first, at the Caguas police station, when the defendants were in a holding cell; next, according to...