Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
United States of America v. Jean Carlos Torres-Correa
Date: 01-21-2022
Case Number: 19-1639P.01
Judge: Kermit V. Lipez
Court: center>
United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Plaintiff's Attorney: W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, and Gregory B. Conner,
Assistant United States Attorney
Defendant's Attorney:
Boston, MA - Best Criminal Defense Lawyer Directory
Boston, MA - Best Criminal Defense Lawyer Directory
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Description:
At approximately 4:00 a.m. on January 13, 2017, three
masked assailants -- later identified as Torres-Correa, I.R.,1 and
Pablo DÃaz-RamÃrez -- robbed a CVS pharmacy in Caguas, Puerto Rico.
I.R. carried a handgun, DÃaz-RamÃrez carried a modified AR-15, and
Torres-Correa carried a bag to store the proceeds of the robbery.
Three people were inside the store -- a clerk, a security guard,
and the shift supervisor, Calixto Cotto-Carrasquillo. During the
robbery, I.R. and DÃaz-RamÃrez threatened the three CVS employees
1 We refer to I.R. by his initials because he was a minor at
the time of the offense.
- 3 -
with their weapons, and I.R. repeatedly pistol-whipped CottoCarrasquillo. I.R., DÃaz-RamÃrez, and Torres-Correa fled the
store having stolen $207 and two bottles of liquor.
During a police interview in an unrelated investigation,
DÃaz-RamÃrez confessed to the CVS robbery, and identified I.R. and
Torres-Correa as his accomplices. DÃaz-RamÃrez also confessed to
a series of additional crimes, including the robbery of a Subway
restaurant.
Torres-Correa and DÃaz-RamÃrez were indicted for Hobbs
Act robbery (18 U.S.C. § 1951), and for using, carrying, or
possessing a firearm during and in relation to a crime of violence
(18 U.S.C. § 924(c)(1)(A)). DÃaz-RamÃrez was also indicted for
several other offenses. Torres-Correa filed a motion to dismiss
the § 924(c) count, claiming that Hobbs Act robbery was not a crime
of violence for purposes of § 924(c)(1)(A). The district court
denied the motion.
A three-day trial was held in October 2018. The
government called three witnesses: the CVS store manager, Rene
Alicea-Salgado, the shift supervisor, Cotto-Carrasquillo, and
DÃaz-RamÃrez. Alicea-Salgado testified that on January 13, 2017,
he arrived at the store a few hours after the robbery, verified
that the security cameras were working, and created a recording of
the relevant video footage. He then signed and dated a CD of the
recording. Alicea-Salgado referred to "the daily process [by
- 4 -
which] managers have to verify that the security system is working"
as validating a "checklist" that is provided by the store.
When the government moved to introduce the surveillance
footage into evidence, Torres-Correa objected on the basis that
Alicea-Salgado had not adequately explained his reference to a
"checklist." Following Torres-Correa's objection, the court
further questioned Alicea-Salgado regarding the checklist
procedure.2 Satisfied with his answers, the court admitted the CD
containing the surveillance footage. On cross-examination, in an
apparent reference to the process by which he had confirmed that
the security cameras were working, Alicea-Salgado testified that
he had verified the "checklist" the morning after the robbery.
The next government witness, Cotto-Carrasquillo,
testified to the details of the robbery while the government played
the surveillance video. The government's final witness, DÃazRamÃrez, testified about the planning of the robbery and TorresCorrea's involvement. During his testimony, the government again
played the surveillance footage, and DÃaz-RamÃrez described what
happened and identified Torres-Correa in the video. DÃaz-RamÃrez
also acknowledged that he was testifying pursuant to a cooperation
2 Alicea-Salgado elaborated: "the checklist specifies if the
system is working properly or not, and that is done through the
observation of the monitors, like I specified before." AliceaSalgado also explained that he had verified that all twenty-three
of the store's cameras were working properly.
- 5 -
agreement and that he had pleaded guilty to several other crimes
set forth in the same indictment, including a robbery at a Subway
restaurant and other robberies and a carjacking. He did not,
however, discuss the details of these other crimes in his direct
examination.
On cross-examination, Torres-Correa's counsel asked
DÃaz-RamÃrez whether, as part of his cooperation, he had provided
information to the government about the charges in the indictment
to which he had pleaded guilty. DÃaz-RamÃrez replied that he had.
In particular, he testified about providing the government with
information about the CVS robbery and the Subway robbery, which
was also set forth in the indictment but was a separate count that
did not involve Torres-Correa. Regarding the Subway robbery, DÃazRamÃrez stated that he "didn't see all of the details" of this
robbery but saw that his accomplices had "jumped over the counter
in order to open the cash registers."
Upon hearing this testimony, Torres-Correa sought to
impeach DÃaz-RamÃrez by introducing a recorded interview between
DÃaz-RamÃrez and the FBI. Torres-Correa claimed that, in this
video, DÃaz-RamÃrez had told FBI agents that "he didn't see
anything" during the Subway robbery because he was "far away"
(i.e., outside of the restaurant), thus purportedly contradicting
DÃaz-RamÃrez's trial testimony that he had seen his accomplices
jump over the counter during the robbery.
- 6 -
The government objected to the introduction of the
video. It argued that DÃaz-RamÃrez's statements were not
inconsistent, and that -- even if they were inconsistent -- the
Subway robbery was a collateral matter of little importance to the
case. The court sustained the objection and excluded the video,
finding that it had no impeachment value. The court noted that
"[e]ven if we set aside the fact that this is about another offense
that is not the offense that [Torres-Correa is] on trial for, the
fact is that [DÃaz-RamÃrez] stated upfront that he wasn't inside
the Subway when the robbery took place." It continued: "the
inconsistency is really too vague, because . . . the first time
[sic] thing he said upfront is that he couldn't see well and he
couldn't see all the details . . . . It's just a matter of degree."
Torres-Correa also sought the court's permission to
cross-examine DÃaz-RamÃrez about his mental health history, noting
that DÃaz-RamÃrez had reported a schizophrenia diagnosis to the
probation department. The court ruled that it would prohibit this
line of questioning in the absence of a medical expert.
Elaborating, the court said that it was inappropriate for TorresCorrea's counsel and DÃaz-RamÃrez to "talk[] about medical facts"
and form "a medical hypothesis of what schizophrenia is and fit[]
it into [the] defense" without the testimony of a medical expert.
Since Torres-Correa did not have a medical expert, the court
prohibited the line of questioning.
- 7 -
At the close of the government's case, Torres-Correa
moved for a judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure. The district court denied
the motion. Torres-Correa did not present any witnesses.
The jury found Torres-Correa guilty on both counts. He
was sentenced to one hundred and thirty-five months of
incarceration. This appeal followed.
A. Hobbs Act Robbery as a Crime of Violence
Torres-Correa argues that Hobbs Act robbery is not a
crime of violence for purposes of § 924(c), and, thus, the court
erred in denying his motion to dismiss the firearms offense (Count
VI). As relevant here, § 924(c)(1)(A) applies to "any person who,
during and in relation to any crime of violence . . . , uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm."3 Subsection 924(c)(1)(A)(ii) requires a
minimum sentence of seven years "if the firearm is brandished"
during commission of the crime of violence. Section 924(c)(3)(A)
defines "crime of violence" as a felony that "has as an element
3 The fact that Torres-Correa did not himself carry a firearm
during the robbery is irrelevant because "the defendant does not
need to have carried the gun himself to be liable under § 924(c)."
United States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir.
2004).
- 8 -
the use, attempted use, or threatened use of physical force against
the person or property of another."4
Torres-Correa's claim that Hobbs Act robbery is not a
crime of violence for purposes of § 924(c)(3)(A) is a nonstarter.
It is settled law in this Circuit that Hobbs Act robbery
categorically constitutes a crime of violence. United States v.
GarcÃa-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) ("[W]e . . . hold
that because the offense of Hobbs Act robbery has as an element
the use or threatened use of physical force capable of causing
injury to a person or property, a conviction for Hobbs Act robbery
categorically constitutes a 'crime of violence' under section
924(c)'s force clause.").
Torres-Correa asks us to "reconsider[]" that precedent.
Of course, our panel cannot do so. United States v. Holloway, 499
F.3d 114, 118 (1st Cir. 2007) ("[I]t is axiomatic that new panels
are bound by prior panel decisions in the absence of supervening
authority."). Given the absence of any supervening authority from
4 Section 924(c)(3)(B) contains another definition for "crime
of violence" -- a felony "that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense."
The Supreme Court has declared that subsection to be
unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319,
2336 (2019). However, Davis did not affect the continued viability
of the § 924(c)(3)(A) definition. See United States v. HernándezRomán, 981 F.3d 138, 146 (1st Cir. 2020).
- 9 -
the Supreme Court or an en banc panel, the district court did not
err in refusing to dismiss the § 924(c)(3)(A) charge.
B. Surveillance Video
Torres-Correa claims that the district court erred by
admitting surveillance footage of the robbery "without proper
authentication." Specifically, he argues that the footage was not
properly authenticated because the government did not introduce
the "checklist" referenced by Alicea-Salgado, and that AliceaSalgado lacked the personal knowledge necessary to authenticate
the footage because (1) he was not present during the robbery, and
(2) he did not view the footage until several hours after the
robbery was completed. We review the district court's decision to
admit evidence for abuse of discretion. United States v. VázquezSoto, 939 F.3d 365, 373 (1st Cir. 2019).
Rule 901(a) of the Federal Rules of Evidence states: "To
satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it
is." Fed. R. Evid. 901(a). In applying this rule, the district
court must evaluate "whether there is 'enough support in the record
to warrant a reasonable person in determining that the evidence is
what it purports to be.'" United States v. Blanchard, 867 F.3d 1,
6 (1st Cir. 2017) (quoting United States v. Paulino, 13 F.3d 20,
23 (1st Cir. 1994)). Rule 901(b) provides a non-exhaustive list
- 10 -
of methods sufficient to authenticate evidence, including
testimony from a witness with knowledge "that an item is what it
is claimed to be." Fed. R. Evid. 901(b)(1). A witness with
knowledge may be "either a custodian or a percipient witness."
Blanchard, 867 F.3d at 5 (quoting Paulino, 13 F.3d at 23). "This
standard does 'not require the proponent of the evidence to rule
out all possibilities inconsistent with authenticity.'" Id.
(quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.
1994)).
Alicea-Salgado's testimony that he used a "checklist"
referred to the store's process for verifying that its security
system was working properly. When asked whether he "reviewed . .
. the checklist for that day?" Alicea-Salgado responded "[y]es,"
and noted that he found "[t]hat the surveillance system was working
completely." He also testified that he checked that the system
was working by first verifying that all of the store's twentythree security cameras were visible on its security monitor, and
then by making recordings of the relevant security footage after
confirming that the areas in which the robbery took place had been
captured by the cameras.
Thus, after confirming that the security cameras were
working, Alicea-Salgado personally viewed the surveillance system
footage shortly after the robbery and created the recording that
was submitted into evidence. See Hitt v. Connell, 301 F.3d 240,
- 11 -
250 (5th Cir. 2002) (affirming the trial court's admission of audio
recordings where "[b]oth deputies who recorded [the] statements
testified about how they made the recordings"). Torres-Correa
provides no legal authority to support his claim that AliceaSalgado's mention of a "checklist" necessarily required the
government to produce a physical document containing a checklist,
as opposed to his testimony that he followed the procedures
outlined above.5 Nor has Torres-Correa supported his claim that
Alicea-Salgado could not authenticate the video because he was not
present during the robbery.6
Finally, even if Alicea-Salgado's testimony had not been
sufficient to authenticate the video (and it clearly was), the
government's other witnesses, Cotto-Carrasquillo and DÃaz-RamÃrez,
5 It is not clear from the record whether a physical document
exists that memorializes the procedure followed by Alicea-Salgado.
However, even if such a physical checklist does exist, it would
not change the fact that the steps Alicea-Salgado performed were
sufficient to support a finding that the video footage "is what it
is claimed to be." Fed. R. Evid. 901(b)(1).
6 Torres-Correa similarly argues that Alicea-Salgado lacked
the personal knowledge to authenticate the footage because the
checklist "was not done by him." While Torres-Correa is correct
that a different CVS employee verified the checklist the night
prior to the robbery, this argument disregards Alicea-Salgado's
testimony on cross-examination that he verified the checklist
again shortly after the robbery. And regardless of whether or not
Alicea-Salgado's verification that morning is properly
characterized as using the "checklist," his actions were still
sufficient under Rule 901(b)(1), and the fact that a different
employee completed the checklist before the robbery is of no
significance for the authentication determination of the court.
- 12 -
were present during the robbery and recalled the events depicted
in the video as it played, further supporting the authenticity of
the footage. See Blanchard, 867 F.3d at 7 (noting that even if
"evidence is admitted prematurely, a new trial is not warranted
when later testimony cures the error") (quoting United States v.
Espinal-Almeida, 699 F.3d 588, 609 (1st Cir. 2012)).
Thus, the court did not abuse its discretion in
determining that Alicea-Salgado's testimony that he viewed and
verified the surveillance footage was sufficient to allow a
reasonable person to "determin[e] that the evidence is what it
purports to be." Blanchard, 867 F.3d at 6 (quoting Paulino, 13
F.3d at 23).
C. Cross-Examination
Finally, Torres-Correa challenges the court's decision
to exclude impeachment evidence and a line of questioning regarding
DÃaz-RamÃrez, the government's cooperating witness and a coparticipant in the robbery. Specifically, Torres-Correa
challenges the exclusion of a video of DÃaz-RamÃrez's interview
with the FBI and defense counsel's questions regarding DÃazRamÃrez's schizophrenia diagnosis. These two evidentiary claims
are also subject to review for abuse of discretion. See VázquezSoto, 939 F.3d at 373.
- 13 -
1. FBI Interview
Torres-Correa asserts that the district court abused its
discretion by refusing to admit a video of DÃaz-RamÃrez's interview
with the FBI because it contradicted DÃaz-RamÃrez's trial
testimony. Specifically, when asked on cross-examination about
the robbery of a Subway restaurant, DÃaz-RamÃrez said that he
"didn't see all the details," but saw "when they jumped over the
counter in order to open the cash registers." However, the video
interview purportedly showed that DÃaz-RamÃrez had previously told
FBI agents that he "didn't see anything." Torres-Correa argued
that this inconsistency was relevant to DÃaz-RamÃrez's "perception
of things," and added that "[w]hat he perceives and what he doesn't
perceive is critical to his credibility." The government argues
that the district court properly excluded the video because DÃazRamÃrez's statements were not truly inconsistent and that, even if
they were, any such inconsistency would have been a "collateral"
matter for which Torres-Correa cannot introduce extrinsic
evidence.
In excluding the FBI video, the district court found
that the purported inconsistency was "just a matter of degree,"
and "too vague" to have impeachment value. From this exchange, it
appears that the district court may have believed there was no
inconsistency in DÃaz-RamÃrez's statements at all. However, even
assuming that the court acknowledged that there might be a minor
- 14 -
inconsistency, it was well within the court's discretion to exclude
the video. Playing the FBI interview would have required immersion
in the details of an incident that was far removed from the merits
of Torres-Correa's case, which would have risked confusing the
jury and wasting time. See United States v. Beauchamp, 986 F.2d
1, 4 (1st Cir. 1993) (extrinsic impeachment evidence was properly
excluded as collateral because its "marginal relevance" to the
witness's bias or motive to testify falsely would be outweighed by
the "time and effort" required to present the testimony).
Although Torres-Correa argues that the purported
inconsistency goes to DÃaz-RamÃrez's credibility, this argument
misses the point of our case law regarding collateral matters.
The problem with introducing the FBI video is not that it would
have been irrelevant to DÃaz-RamÃrez's credibility. Rather, the
problem is that the video's limited relevance to DÃaz-RamÃrez's
credibility was insufficient to outweigh the danger it posed of
confusing the jury and causing delay. See United States v.
Mulinelli-Navas, 111 F.3d 983, 989 (1st Cir. 1997) (finding no
abuse of discretion in the district court's decision to exclude
testimony that was relevant to a witness's credibility, but only
on a matter "immaterial" to the merits of the case); cf. United
States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991) (recognizing
the district court's broad discretion to prohibit crossexamination that would introduce into the case collateral matters
- 15 -
that could confuse the jury, even if such examination is relevant
to a witness's credibility or perception). The determination of
whether a matter is collateral is "analogous to Rule 403's
relevancy balancing test, which calls for relevant evidence to be
excluded when its 'probative value is substantially outweighed'"
by considerations such as confusing the issues, misleading the
jury, or wasting time. United States v. Catalán-Roman, 585 F.3d
453, 469 (1st Cir. 2009) (quoting Fed. R. Evid. 403).
There was no abuse of discretion in the district court's
decision to exclude the video.
2. Mental Health Evidence
Lastly, Torres-Correa argues that the court abused its
discretion when it prohibited his counsel from questioning DÃazRamÃrez about his schizophrenia diagnosis. Torres-Correa argued
that topics such as DÃaz-RamÃrez's history of medication and
compliance with his schizophrenia treatment would be relevant to
DÃaz-RamÃrez's perceptive abilities. For example, Torres-Correa
contended that "[i]f [DÃaz-RamÃrez] goes to the hospital and he
has begun a treatment and he has not followed up with the
treatment, his perception may be affected." The Court rejected
this line of inquiry, noting that Torres-Correa was seeking to
elicit "a medical conclusion" from a lay witness who could not
provide answers of scientific value. As the court remarked to
Torres-Correa's counsel, "[y]ou don't have any scientific basis
- 16 -
for your question; nor does he, as a patient, have the knowledge
to give an answer that has probative value. If you had an expert
there, it would be a different story, because the expert would
come forward with an explanation that brings light to the issue of
the particular mental illness that you're probing into . . . . As
it stands now, this has no probative value."
A witness's mental health may certainly be relevant for
the jury to consider in evaluating the reliability of his or her
testimony. See United States v. Butt, 955 F.2d 77, 82-83 (1st
Cir. 1992). But the trial court did not preclude questioning on
DÃaz-RamÃrez's schizophrenia based on relevance. Rather, the
trial court determined that questioning DÃaz-RamÃrez about his
schizophrenia would not be probative unless an expert witness were
available to testify regarding how schizophrenia affects a
person's perceptive abilities.
This determination was well within the discretion of the
district court. Under Federal Rule of Evidence 701(c), a lay
witness (like DÃaz-RamÃrez) cannot testify to "scientific,
technical, or other specialized knowledge." Rather, an opinion
based on scientific (hence, psychiatric) knowledge may only be
- 17 -
given by "[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education." Fed. R. Evid. 702.7
Boston, MA - Criminal defense lawyer represented defendant with interfering with commerce by threats or violence, and using, carrying, or possessing a firearm during and in relation to a crime of violence charges.
At approximately 4:00 a.m. on January 13, 2017, three
masked assailants -- later identified as Torres-Correa, I.R.,1 and
Pablo DÃaz-RamÃrez -- robbed a CVS pharmacy in Caguas, Puerto Rico.
I.R. carried a handgun, DÃaz-RamÃrez carried a modified AR-15, and
Torres-Correa carried a bag to store the proceeds of the robbery.
Three people were inside the store -- a clerk, a security guard,
and the shift supervisor, Calixto Cotto-Carrasquillo. During the
robbery, I.R. and DÃaz-RamÃrez threatened the three CVS employees
1 We refer to I.R. by his initials because he was a minor at
the time of the offense.
- 3 -
with their weapons, and I.R. repeatedly pistol-whipped CottoCarrasquillo. I.R., DÃaz-RamÃrez, and Torres-Correa fled the
store having stolen $207 and two bottles of liquor.
During a police interview in an unrelated investigation,
DÃaz-RamÃrez confessed to the CVS robbery, and identified I.R. and
Torres-Correa as his accomplices. DÃaz-RamÃrez also confessed to
a series of additional crimes, including the robbery of a Subway
restaurant.
Torres-Correa and DÃaz-RamÃrez were indicted for Hobbs
Act robbery (18 U.S.C. § 1951), and for using, carrying, or
possessing a firearm during and in relation to a crime of violence
(18 U.S.C. § 924(c)(1)(A)). DÃaz-RamÃrez was also indicted for
several other offenses. Torres-Correa filed a motion to dismiss
the § 924(c) count, claiming that Hobbs Act robbery was not a crime
of violence for purposes of § 924(c)(1)(A). The district court
denied the motion.
A three-day trial was held in October 2018. The
government called three witnesses: the CVS store manager, Rene
Alicea-Salgado, the shift supervisor, Cotto-Carrasquillo, and
DÃaz-RamÃrez. Alicea-Salgado testified that on January 13, 2017,
he arrived at the store a few hours after the robbery, verified
that the security cameras were working, and created a recording of
the relevant video footage. He then signed and dated a CD of the
recording. Alicea-Salgado referred to "the daily process [by
- 4 -
which] managers have to verify that the security system is working"
as validating a "checklist" that is provided by the store.
When the government moved to introduce the surveillance
footage into evidence, Torres-Correa objected on the basis that
Alicea-Salgado had not adequately explained his reference to a
"checklist." Following Torres-Correa's objection, the court
further questioned Alicea-Salgado regarding the checklist
procedure.2 Satisfied with his answers, the court admitted the CD
containing the surveillance footage. On cross-examination, in an
apparent reference to the process by which he had confirmed that
the security cameras were working, Alicea-Salgado testified that
he had verified the "checklist" the morning after the robbery.
The next government witness, Cotto-Carrasquillo,
testified to the details of the robbery while the government played
the surveillance video. The government's final witness, DÃazRamÃrez, testified about the planning of the robbery and TorresCorrea's involvement. During his testimony, the government again
played the surveillance footage, and DÃaz-RamÃrez described what
happened and identified Torres-Correa in the video. DÃaz-RamÃrez
also acknowledged that he was testifying pursuant to a cooperation
2 Alicea-Salgado elaborated: "the checklist specifies if the
system is working properly or not, and that is done through the
observation of the monitors, like I specified before." AliceaSalgado also explained that he had verified that all twenty-three
of the store's cameras were working properly.
- 5 -
agreement and that he had pleaded guilty to several other crimes
set forth in the same indictment, including a robbery at a Subway
restaurant and other robberies and a carjacking. He did not,
however, discuss the details of these other crimes in his direct
examination.
On cross-examination, Torres-Correa's counsel asked
DÃaz-RamÃrez whether, as part of his cooperation, he had provided
information to the government about the charges in the indictment
to which he had pleaded guilty. DÃaz-RamÃrez replied that he had.
In particular, he testified about providing the government with
information about the CVS robbery and the Subway robbery, which
was also set forth in the indictment but was a separate count that
did not involve Torres-Correa. Regarding the Subway robbery, DÃazRamÃrez stated that he "didn't see all of the details" of this
robbery but saw that his accomplices had "jumped over the counter
in order to open the cash registers."
Upon hearing this testimony, Torres-Correa sought to
impeach DÃaz-RamÃrez by introducing a recorded interview between
DÃaz-RamÃrez and the FBI. Torres-Correa claimed that, in this
video, DÃaz-RamÃrez had told FBI agents that "he didn't see
anything" during the Subway robbery because he was "far away"
(i.e., outside of the restaurant), thus purportedly contradicting
DÃaz-RamÃrez's trial testimony that he had seen his accomplices
jump over the counter during the robbery.
- 6 -
The government objected to the introduction of the
video. It argued that DÃaz-RamÃrez's statements were not
inconsistent, and that -- even if they were inconsistent -- the
Subway robbery was a collateral matter of little importance to the
case. The court sustained the objection and excluded the video,
finding that it had no impeachment value. The court noted that
"[e]ven if we set aside the fact that this is about another offense
that is not the offense that [Torres-Correa is] on trial for, the
fact is that [DÃaz-RamÃrez] stated upfront that he wasn't inside
the Subway when the robbery took place." It continued: "the
inconsistency is really too vague, because . . . the first time
[sic] thing he said upfront is that he couldn't see well and he
couldn't see all the details . . . . It's just a matter of degree."
Torres-Correa also sought the court's permission to
cross-examine DÃaz-RamÃrez about his mental health history, noting
that DÃaz-RamÃrez had reported a schizophrenia diagnosis to the
probation department. The court ruled that it would prohibit this
line of questioning in the absence of a medical expert.
Elaborating, the court said that it was inappropriate for TorresCorrea's counsel and DÃaz-RamÃrez to "talk[] about medical facts"
and form "a medical hypothesis of what schizophrenia is and fit[]
it into [the] defense" without the testimony of a medical expert.
Since Torres-Correa did not have a medical expert, the court
prohibited the line of questioning.
- 7 -
At the close of the government's case, Torres-Correa
moved for a judgment of acquittal pursuant to Rule 29 of the
Federal Rules of Criminal Procedure. The district court denied
the motion. Torres-Correa did not present any witnesses.
The jury found Torres-Correa guilty on both counts. He
was sentenced to one hundred and thirty-five months of
incarceration. This appeal followed.
A. Hobbs Act Robbery as a Crime of Violence
Torres-Correa argues that Hobbs Act robbery is not a
crime of violence for purposes of § 924(c), and, thus, the court
erred in denying his motion to dismiss the firearms offense (Count
VI). As relevant here, § 924(c)(1)(A) applies to "any person who,
during and in relation to any crime of violence . . . , uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm."3 Subsection 924(c)(1)(A)(ii) requires a
minimum sentence of seven years "if the firearm is brandished"
during commission of the crime of violence. Section 924(c)(3)(A)
defines "crime of violence" as a felony that "has as an element
3 The fact that Torres-Correa did not himself carry a firearm
during the robbery is irrelevant because "the defendant does not
need to have carried the gun himself to be liable under § 924(c)."
United States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir.
2004).
- 8 -
the use, attempted use, or threatened use of physical force against
the person or property of another."4
Torres-Correa's claim that Hobbs Act robbery is not a
crime of violence for purposes of § 924(c)(3)(A) is a nonstarter.
It is settled law in this Circuit that Hobbs Act robbery
categorically constitutes a crime of violence. United States v.
GarcÃa-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) ("[W]e . . . hold
that because the offense of Hobbs Act robbery has as an element
the use or threatened use of physical force capable of causing
injury to a person or property, a conviction for Hobbs Act robbery
categorically constitutes a 'crime of violence' under section
924(c)'s force clause.").
Torres-Correa asks us to "reconsider[]" that precedent.
Of course, our panel cannot do so. United States v. Holloway, 499
F.3d 114, 118 (1st Cir. 2007) ("[I]t is axiomatic that new panels
are bound by prior panel decisions in the absence of supervening
authority."). Given the absence of any supervening authority from
4 Section 924(c)(3)(B) contains another definition for "crime
of violence" -- a felony "that by its nature, involves a
substantial risk that physical force against the person or property
of another may be used in the course of committing the offense."
The Supreme Court has declared that subsection to be
unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319,
2336 (2019). However, Davis did not affect the continued viability
of the § 924(c)(3)(A) definition. See United States v. HernándezRomán, 981 F.3d 138, 146 (1st Cir. 2020).
- 9 -
the Supreme Court or an en banc panel, the district court did not
err in refusing to dismiss the § 924(c)(3)(A) charge.
B. Surveillance Video
Torres-Correa claims that the district court erred by
admitting surveillance footage of the robbery "without proper
authentication." Specifically, he argues that the footage was not
properly authenticated because the government did not introduce
the "checklist" referenced by Alicea-Salgado, and that AliceaSalgado lacked the personal knowledge necessary to authenticate
the footage because (1) he was not present during the robbery, and
(2) he did not view the footage until several hours after the
robbery was completed. We review the district court's decision to
admit evidence for abuse of discretion. United States v. VázquezSoto, 939 F.3d 365, 373 (1st Cir. 2019).
Rule 901(a) of the Federal Rules of Evidence states: "To
satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it
is." Fed. R. Evid. 901(a). In applying this rule, the district
court must evaluate "whether there is 'enough support in the record
to warrant a reasonable person in determining that the evidence is
what it purports to be.'" United States v. Blanchard, 867 F.3d 1,
6 (1st Cir. 2017) (quoting United States v. Paulino, 13 F.3d 20,
23 (1st Cir. 1994)). Rule 901(b) provides a non-exhaustive list
- 10 -
of methods sufficient to authenticate evidence, including
testimony from a witness with knowledge "that an item is what it
is claimed to be." Fed. R. Evid. 901(b)(1). A witness with
knowledge may be "either a custodian or a percipient witness."
Blanchard, 867 F.3d at 5 (quoting Paulino, 13 F.3d at 23). "This
standard does 'not require the proponent of the evidence to rule
out all possibilities inconsistent with authenticity.'" Id.
(quoting United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.
1994)).
Alicea-Salgado's testimony that he used a "checklist"
referred to the store's process for verifying that its security
system was working properly. When asked whether he "reviewed . .
. the checklist for that day?" Alicea-Salgado responded "[y]es,"
and noted that he found "[t]hat the surveillance system was working
completely." He also testified that he checked that the system
was working by first verifying that all of the store's twentythree security cameras were visible on its security monitor, and
then by making recordings of the relevant security footage after
confirming that the areas in which the robbery took place had been
captured by the cameras.
Thus, after confirming that the security cameras were
working, Alicea-Salgado personally viewed the surveillance system
footage shortly after the robbery and created the recording that
was submitted into evidence. See Hitt v. Connell, 301 F.3d 240,
- 11 -
250 (5th Cir. 2002) (affirming the trial court's admission of audio
recordings where "[b]oth deputies who recorded [the] statements
testified about how they made the recordings"). Torres-Correa
provides no legal authority to support his claim that AliceaSalgado's mention of a "checklist" necessarily required the
government to produce a physical document containing a checklist,
as opposed to his testimony that he followed the procedures
outlined above.5 Nor has Torres-Correa supported his claim that
Alicea-Salgado could not authenticate the video because he was not
present during the robbery.6
Finally, even if Alicea-Salgado's testimony had not been
sufficient to authenticate the video (and it clearly was), the
government's other witnesses, Cotto-Carrasquillo and DÃaz-RamÃrez,
5 It is not clear from the record whether a physical document
exists that memorializes the procedure followed by Alicea-Salgado.
However, even if such a physical checklist does exist, it would
not change the fact that the steps Alicea-Salgado performed were
sufficient to support a finding that the video footage "is what it
is claimed to be." Fed. R. Evid. 901(b)(1).
6 Torres-Correa similarly argues that Alicea-Salgado lacked
the personal knowledge to authenticate the footage because the
checklist "was not done by him." While Torres-Correa is correct
that a different CVS employee verified the checklist the night
prior to the robbery, this argument disregards Alicea-Salgado's
testimony on cross-examination that he verified the checklist
again shortly after the robbery. And regardless of whether or not
Alicea-Salgado's verification that morning is properly
characterized as using the "checklist," his actions were still
sufficient under Rule 901(b)(1), and the fact that a different
employee completed the checklist before the robbery is of no
significance for the authentication determination of the court.
- 12 -
were present during the robbery and recalled the events depicted
in the video as it played, further supporting the authenticity of
the footage. See Blanchard, 867 F.3d at 7 (noting that even if
"evidence is admitted prematurely, a new trial is not warranted
when later testimony cures the error") (quoting United States v.
Espinal-Almeida, 699 F.3d 588, 609 (1st Cir. 2012)).
Thus, the court did not abuse its discretion in
determining that Alicea-Salgado's testimony that he viewed and
verified the surveillance footage was sufficient to allow a
reasonable person to "determin[e] that the evidence is what it
purports to be." Blanchard, 867 F.3d at 6 (quoting Paulino, 13
F.3d at 23).
C. Cross-Examination
Finally, Torres-Correa challenges the court's decision
to exclude impeachment evidence and a line of questioning regarding
DÃaz-RamÃrez, the government's cooperating witness and a coparticipant in the robbery. Specifically, Torres-Correa
challenges the exclusion of a video of DÃaz-RamÃrez's interview
with the FBI and defense counsel's questions regarding DÃazRamÃrez's schizophrenia diagnosis. These two evidentiary claims
are also subject to review for abuse of discretion. See VázquezSoto, 939 F.3d at 373.
- 13 -
1. FBI Interview
Torres-Correa asserts that the district court abused its
discretion by refusing to admit a video of DÃaz-RamÃrez's interview
with the FBI because it contradicted DÃaz-RamÃrez's trial
testimony. Specifically, when asked on cross-examination about
the robbery of a Subway restaurant, DÃaz-RamÃrez said that he
"didn't see all the details," but saw "when they jumped over the
counter in order to open the cash registers." However, the video
interview purportedly showed that DÃaz-RamÃrez had previously told
FBI agents that he "didn't see anything." Torres-Correa argued
that this inconsistency was relevant to DÃaz-RamÃrez's "perception
of things," and added that "[w]hat he perceives and what he doesn't
perceive is critical to his credibility." The government argues
that the district court properly excluded the video because DÃazRamÃrez's statements were not truly inconsistent and that, even if
they were, any such inconsistency would have been a "collateral"
matter for which Torres-Correa cannot introduce extrinsic
evidence.
In excluding the FBI video, the district court found
that the purported inconsistency was "just a matter of degree,"
and "too vague" to have impeachment value. From this exchange, it
appears that the district court may have believed there was no
inconsistency in DÃaz-RamÃrez's statements at all. However, even
assuming that the court acknowledged that there might be a minor
- 14 -
inconsistency, it was well within the court's discretion to exclude
the video. Playing the FBI interview would have required immersion
in the details of an incident that was far removed from the merits
of Torres-Correa's case, which would have risked confusing the
jury and wasting time. See United States v. Beauchamp, 986 F.2d
1, 4 (1st Cir. 1993) (extrinsic impeachment evidence was properly
excluded as collateral because its "marginal relevance" to the
witness's bias or motive to testify falsely would be outweighed by
the "time and effort" required to present the testimony).
Although Torres-Correa argues that the purported
inconsistency goes to DÃaz-RamÃrez's credibility, this argument
misses the point of our case law regarding collateral matters.
The problem with introducing the FBI video is not that it would
have been irrelevant to DÃaz-RamÃrez's credibility. Rather, the
problem is that the video's limited relevance to DÃaz-RamÃrez's
credibility was insufficient to outweigh the danger it posed of
confusing the jury and causing delay. See United States v.
Mulinelli-Navas, 111 F.3d 983, 989 (1st Cir. 1997) (finding no
abuse of discretion in the district court's decision to exclude
testimony that was relevant to a witness's credibility, but only
on a matter "immaterial" to the merits of the case); cf. United
States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991) (recognizing
the district court's broad discretion to prohibit crossexamination that would introduce into the case collateral matters
- 15 -
that could confuse the jury, even if such examination is relevant
to a witness's credibility or perception). The determination of
whether a matter is collateral is "analogous to Rule 403's
relevancy balancing test, which calls for relevant evidence to be
excluded when its 'probative value is substantially outweighed'"
by considerations such as confusing the issues, misleading the
jury, or wasting time. United States v. Catalán-Roman, 585 F.3d
453, 469 (1st Cir. 2009) (quoting Fed. R. Evid. 403).
There was no abuse of discretion in the district court's
decision to exclude the video.
2. Mental Health Evidence
Lastly, Torres-Correa argues that the court abused its
discretion when it prohibited his counsel from questioning DÃazRamÃrez about his schizophrenia diagnosis. Torres-Correa argued
that topics such as DÃaz-RamÃrez's history of medication and
compliance with his schizophrenia treatment would be relevant to
DÃaz-RamÃrez's perceptive abilities. For example, Torres-Correa
contended that "[i]f [DÃaz-RamÃrez] goes to the hospital and he
has begun a treatment and he has not followed up with the
treatment, his perception may be affected." The Court rejected
this line of inquiry, noting that Torres-Correa was seeking to
elicit "a medical conclusion" from a lay witness who could not
provide answers of scientific value. As the court remarked to
Torres-Correa's counsel, "[y]ou don't have any scientific basis
- 16 -
for your question; nor does he, as a patient, have the knowledge
to give an answer that has probative value. If you had an expert
there, it would be a different story, because the expert would
come forward with an explanation that brings light to the issue of
the particular mental illness that you're probing into . . . . As
it stands now, this has no probative value."
A witness's mental health may certainly be relevant for
the jury to consider in evaluating the reliability of his or her
testimony. See United States v. Butt, 955 F.2d 77, 82-83 (1st
Cir. 1992). But the trial court did not preclude questioning on
DÃaz-RamÃrez's schizophrenia based on relevance. Rather, the
trial court determined that questioning DÃaz-RamÃrez about his
schizophrenia would not be probative unless an expert witness were
available to testify regarding how schizophrenia affects a
person's perceptive abilities.
This determination was well within the discretion of the
district court. Under Federal Rule of Evidence 701(c), a lay
witness (like DÃaz-RamÃrez) cannot testify to "scientific,
technical, or other specialized knowledge." Rather, an opinion
based on scientific (hence, psychiatric) knowledge may only be
- 17 -
given by "[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education." Fed. R. Evid. 702.7
Outcome:
There was no abuse of discretion in the court's decision
to condition cross-examination about Diaz's mental health history
on the presentation of an expert witness.
Affirmed.
to condition cross-examination about Diaz's mental health history
on the presentation of an expert witness.
Affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of United States of America v. Jean Carlos Torres-Correa?
The outcome was: There was no abuse of discretion in the court's decision to condition cross-examination about Diaz's mental health history on the presentation of an expert witness. Affirmed.
Which court heard United States of America v. Jean Carlos Torres-Correa?
This case was heard in center><h4><b> United States Court of Appeals For the First Circuit </b> <br> <font color="green"><i>On appeal from The UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO </i></font></center></h4>, MA. The presiding judge was Kermit V. Lipez.
Who were the attorneys in United States of America v. Jean Carlos Torres-Correa?
Plaintiff's attorney: W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, and Gregory B. Conner, Assistant United States Attorney. Defendant's attorney: Boston, MA - Best Criminal Defense Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800.
When was United States of America v. Jean Carlos Torres-Correa decided?
This case was decided on January 21, 2022.