United States v. Vazquez Rivera

June 28, 1996

United States Court of Appeals

For the First Circuit

No. 95-2186

UNITED STATES OF AMERICA,

Appellee,

v.

REYNALDO VAZQUEZ RIVERA,

Defendant, Appellant.

ERRATA SHEET ERRATA SHEET

The opinion of this Court issued on May 21, 1996, is

corrected as follows:

Page 2, second paragraph, lines 4-6, delete sentence that

begins: "We conclude, however, . . ." Replace it with the

following sentence:

We conclude, however, that the factual record has not

been sufficiently developed to support the sentence

enhancement, and therefore remand for the district

court to reconsider the sentencing options.

Page 13, delete footnote 9. Replace it with the following

footnote:

9 Although a rape of any type surely is a sufficiently

serious physical invasion to justify a sentencing

enhancement, the statute as written requires evidence

of the specific, objective types of harm set out there.

It may be that, in choosing the definition of serious

bodily injury contained in 1365, a statute that

penalizes the tampering of consumer products, see supra

at 10, Congress did not recognize the limitations of

its language.

Page 14, line 5, insert "evidentiary" between "some" and

"basis."

United States Court of Appeals

For the First Circuit

No. 95-2186

UNITED STATES OF AMERICA,

Appellee,

v.

REYNALDO VAZQUEZ RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Gustavo A. Gelpi, Assistant Federal Public Defender, with

whom Benicio Sanchez Rivera, Federal Public Defender, was on

brief for appellant.

Edwin O. Vazquez, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles

Espinosa, Senior Litigation Counsel, were on brief for appellee.

May 21, 1996

COFFIN, Senior Circuit Judge. Defendant Reynaldo Vazquez

Rivera was convicted of carjacking in violation of 18 U.S.C.

2119. He claims that the district court committed two errors:

first, by allowing the jury to hear evidence that he raped the

carjacking victim and, second, by increasing his sentence based

on a finding that the rape constituted "serious bodily injury"

within the meaning of the statute's enhancement provision.1

The admissibility issue is close. We ultimately have been

persuaded, however, that the prejudicial impact of the rape

evidence did not substantially outweigh its probative value. We

therefore affirm the defendant's conviction. We conclude,

however, that the factual record has not been sufficiently

developed to support the sentence enhancement, and therefore

remand for the district court to reconsider the sentencing

options.

I. Background

1 At the time of the offense, section 2119, which has since

been amended, provided, in pertinent part:

Whoever, possessing a firearm as defined in section 921

of this title, takes a motor vehicle that has been

transported, shipped or received in interstate or

foreign commerce from the person or presence of another

by force and violence or by intimidation, or attempts

to do so, shall --

(1) be fined under this title or imprisoned not

more than 15 years, or both,

(2) if serious bodily injury (as defined in

section 1365 of this title) results, be fined under

this title or imprisoned not more than 25 years, or

both . . . .

-3-

Near midnight on June 24, 1994, just after Lydita Crespo-

Suarez had parked her car near the restaurant where she worked

and was retrieving some items from the back seat, defendant

Vazquez came up from behind and forced her back into the vehicle.

She testified that he had a weapon that she initially could not

see clearly, but later realized was a knife.

Defendant drove Crespo from the busy section of Isla Verde

where the incident began to a remote beach area in Naguabo,

ordered her to disrobe and get out of the car, and then raped

her. According to Crespo's testimony, defendant had a gun that

he put into his waist as he got out of the car, and which he

placed on the car roof before raping her. After the assault,

defendant let Crespo go and he drove off in her car. She walked

along the road until she encountered a police officer, who took

her to a police station where she gave an account of her ordeal.

A short time later, she was examined at a hospital and then sent

home.

Defendant was arrested about a month after the crime, and

was identified by Crespo in a lineup. He was charged with one

count of carjacking, the indictment stating that he had taken a

vehicle from Crespo "by force and violence, inflicting serious

bodily injury, that is: rape her."2

2 A second count charging that appellant used a firearm

during a crime of violence in violation of 18 U.S.C. 924(c) was

dismissed on double jeopardy grounds. Although the court later

reconsidered the dismissal, it chose to let the partial judgment

stand because the government had not sought review of the

dismissal.

-4-

In a motion in limine, Vazquez asked that the "serious

bodily injury/rape" language be deleted from the indictment

because it related only to the sentence enhancement portion of

2119 and not to the offense conduct itself.3 The district court

denied the motion. Defendant sought reconsideration, and,

because his defense would rest entirely on his claim that he did

not have a gun,4 he urged the court to compel the government to

accept his stipulation to the element of "force and violence" or

"intimidation" so as to make evidence of the rape irrelevant.

The court again denied the motion, stating that "the government

has a right to present all the facts that . . . show that there

was a revolver involved."

The testimony at the three-day trial revealed

inconsistencies in law enforcement reports of Crespo's statements

about what weapons she had seen and when she had seen them. The

police officer who first encountered her testified that she

reported being approached by an individual with a gun. In her

own cross-examination, Crespo denied saying that a gun was

involved in the original assault and stated that she first saw

3 As noted earlier, see note 1 supra, 2119(1) provides for

a 15-year maximum term, which is enhanced under subsection (2) to

a 25-year maximum if "serious bodily injury" results. Subsection

(3) provides that, if death results, the carjacker may be

imprisoned for life.

4 As indicated earlier, see note 1 supra, the carjacking

statute under which Vazquez was convicted included firearms

possession as one of its elements. Section 2119 has since been

amended to substitute the phrase "with the intent to cause death

or serious bodily harm" for the language requiring possession of

a firearm. See United States v. Rivera-Gomez, 67 F.3d 993, 996

n.1 (1st Cir. 1995).

-5-

the gun at Naguabo. Notes made by another officer who

interviewed her when she was brought to the Naguabo police

station referred only to a knife or similar sharp object. An FBI

agent testified that Crespo first mentioned seeing a knife near

the driver's seat of the car a few days before trial. The trial

transcript also contains at least ten references to the rape.

Vazquez was convicted, and subsequently was sentenced to the

statutory maximum term of twenty-five years' imprisonment based

on the court's finding that the rape constituted "serious bodily

injury." Vazquez unsuccessfully argued that the enhancement was

inapplicable because the record failed to show that Crespo had

suffered "extreme physical pain," and the district court likewise

rejected his contention that an evidentiary hearing was necessary

to resolve the factual issue of serious bodily injury.

This appeal followed.

Admission of Rape Evidence

Defendant asserts that prejudicial error was committed by

the court in admitting evidence of the victim's rape, since it

was unnecessary to prove any of the elements of carjacking. He

invokes Fed. R. Evid. 403, which compels the exclusion of even

relevant evidence "if its probative value is substantially

outweighed by the danger of unfair prejudice . . . ."

In reviewing this claim, we are mindful of several cautions.

The first is Rule 403 itself. The admitted evidence must not

only be prejudicial, but be unfairly prejudicial, and not only

outweigh relevance but substantially outweigh relevance. United

-6-

States v. Aguilar-Aranceta, 58 F.3d 796, 800 (1st Cir. 1995)

("must be a significant tipping of the scales") (quoting 22

Charles A. Wright & Kenneth A. Graham, Jr., Federal Practice and

Procedure, 5221 at 309-310 (1978)). Moreover, we must accord

the trial court "especially wide latitude" in Rule 403 balancing.

United States v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995).

And finally, where the reviewing court finds the balancing close,

Rule 403 tilts the balance in favor of admission. See United

States v. Clarke, 24 F.3d 257, 265-66 (D.C. Cir. 1994).

We begin by reporting the entire context of the objected to

evidence, next consider its relevance, and then confront the

extent to which its admission caused unfair prejudice.

The critical testimony was given by Crespo after she told of

being held up at 11:15 at night, forced to reenter her car to

take defendant "somewhere," and being driven first to an

automobile licensing station, then to the remote beach area,

Naguabo, while directed to recline in her seat. Crespo then

testified:

Q And what happened after you reached the

Naguabo area?

A He made me get out, first he made me take my

clothes off and then he made me get out of the car. He

put his gun in his pants. He came over to my side.

Q Did anything else happen?

A He told me to get on all fours, in a squat.

THE COURT: Get on all fours.

THE WITNESS: And he raped me.

EXAMINATION CONTINUED

BY MS. CARRENO:

Q You mentioned that he put a revolver in his

waist?

A Yes, but when he raped me, when he was about

to rape me he put it on top of the car.

-7-

Q Were you able to observe that revolver on top

of the car?

A I felt it or I heard when he put it on top of

the car.

Q Were you able to observe it at any moment?

A Yes, when he put it in the waist of his

pants.

Q Can you give the members of the jury a

description of that revolver?

A It was like a metal color with the handle

that was like a wooden handle.

Q After that, what, if anything else happened?

A I asked him if now he could let me go.

Q Did he in fact let you go?

A He told me that if I had my shoes on I could

get out.

Q Did you in fact get out?

A Yes.

Q Did you have your clothes on?

A Yes.

Q Did anything happen before you were allowed

to leave the car?

A He had turned the car around and at that

point was when I asked him if he could let me go.

Q What happened after you left the car?

A I went running along the beach shore to get

to the road.

Trial Transcript pp. 100-101.

The government asserts that the evidence of rape was

necessary to prove the "force and violence" element of the

carjacking statute.5 But, unlike the situation in Rivera-Gomez,

where we held that the act of killing a driver in the course of

an attempted carjacking was highly probative of the "force and

5 The defendant contends that his offer to stipulate that he

took Crespo's vehicle by "force and violence" forecloses the

government's contention. If, however, the government's need for

the rape evidence is not otherwise substantially outweighed by

the risk of unfair prejudice to the defendant, the district

court's rejection of such a stipulation would not constitute an

abuse of discretion. See United States v. Tavares, 21 F.3d 1, 3

(1st Cir. 1994) (en banc) (affirming "the government's `right to

"present to the jury a picture of the events relied upon,"'. . .

including proof of all elements of the crime for which the

defendant has been brought to trial") (citations omitted).

-8-

violence" element, here, defendant already had seized control of

the vehicle, wielding a weapon that Crespo later realized was a

knife. At best, therefore, testimony about the rape was

cumulative evidence of the use of force.

A weightier claim of relevance is that knowledge of the

sexual assault was important to the jury's ability to fully

evaluate Crespo's credibility. A jury reasonably might attribute

inconsistencies in her reports of the crime to her distress and

disorientation in the aftermath of the rape. The government, no

less than the defendant, is entitled to the benefit of such

reasonable inferences.

We therefore conclude that the evidence of rape was not

devoid of relevance. Were this all that could be mustered on the

side of admitting the evidence, we might have found the

concededly highly prejudicial evidence of rape to meet the Rule

403 standard of substantial disproportion. But we also must

consider the fact that the events at Naguabo related to a

critical element of the then crime of carjacking -- possession of

a firearm.

The defense was based solely on the theory that possession

of a firearm had not been proved beyond a reasonable doubt, a

plausible argument given the law enforcement reports of differing

statements from Crespo. The only direct evidence was the

testimony we have quoted.

Crespo's testimony of the conduct leading up to the rape --

particularly defendant's order that she get down on all fours --

-9-

provided an important explanation for her having heard but not

seen the gun being placed on the car roof. Without this

evidence, the prosecution would be significantly hampered in

providing the jury with the answers to a series of logical

questions: why didn't she see the gun? where was she looking?

what was shedoing? why wasthe weapon placed onthe roof ofthe car?

Simply preventing the witness from stating, "And he raped

me" would do nothing -- or very, very little -- to avoid

prejudice. The victim had been taken to a remote beach, ordered

to take her clothes off, get out of the car, and "get on all

fours." The jurors would draw the logical inference. To require

excision as well of all of the suggestive evidence not only would

have unrealistically telescoped the events at Naguabo, but also

would have stripped Crespo's testimony concerning the firearm of

much of its credit worthiness. As the Fifth Circuit stated in

United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979),

"Unless trials are to be conducted on scenarios, on unreal facts

tailored and sanitized for the occasion, the application of Rule

403 must be cautious and sparing." See United States v. Cruz-

Kuilan, 75 F.3d 59, 61 (1st Cir. 1996) (challenged forensic

evidence not only probative of "force and violence" element but

also corroborated government's theory of the case).

In sum, because Crespo's Naguabo testimony provided the sole

direct evidence of the firearm, it was a "crucial chapter" in the

narrative, Rivera-Gomez, 67 F.3d at 998. Although the rape

evidence unquestionably was prejudicial, we cannot say that its

-10-

high probative value was substantially outweighed by the risk of

unfair prejudice. The court did not abuse its discretion in

admitting it.6

III. "Serious Bodily Injury"

The district court sentenced the defendant under subsection

(2) of 2119, which increases the maximum term of imprisonment

from 15 years to 25 years "if serious bodily injury (as defined

in section 1365 of this title) results." Section 1365(g)(3),

contained within the Federal Anti-Tampering Act, provides as

follows:

the term "serious bodily injury" means bodily injury

which involves--

(A) a substantial risk of death;

(B) extreme physical pain;

(C) protracted and obvious disfigurement; or

(D) protracted loss or impairment of the function of a

bodily member, organ, or mental faculty . . . .

The district court applied the enhancement based on a

determination that the rape caused Crespo "extreme physical

pain." Defendant claims that there is no record support for such

a finding, and that the court's decision therefore was clearly

erroneous.

We are constrained to agree. Although we can understand the

court's desire to punish the defendant heavily, and agree with

its view that the crime was "degrading, heinous, cruel and

6 We recognize that the district court's relative weighing

of probativeness and prejudice focused on the rape evidence as

relevant to the issue of "force and violence." Because the

testimony is highly probative on the issue of firearm possession,

we are comfortable affirming its judgment on a somewhat different

basis.

-11-

brutal," there is no record evidence that Crespo suffered either

"extreme physical pain" or any of the other listed injuries. She

testified only that she was raped, without any specific

description of the assault. The presentence report states that

defendant raped Crespo for about five minutes, but also lacks any

elaboration. A medical report filed as part of the presentence

report indicates that, approximately two hours after the attack,

there was no evidence of any cuts or bruises in her vaginal area.

The government suggests that, notwithstanding the absence of

actual physical injury with pain, the court properly could apply

the enhancement based on "extreme physical pain" because

"Congress never intended rigid limiting definitions for the

`serious bodily injury' terminology". The cases it cites,

however, do not support this proposition. For the most part,

they involve construction of the somewhat different "serious

bodily injury" provision contained in the Sentencing

Guidelines,7 and many also feature evidence of painful injuries

suffered by the victim. See, e.g., United States v. Desormeaux,

4 F.3d 628, 630 (8th Cir. 1993) (victim described pain from knife

wound lacerating kidney as "a lot worse than giving birth to a

7 The guidelines define serious bodily injury as follows:

"Serious bodily injury" means injury involving extreme

physical pain or the impairment of a function of a

bodily member, organ, or mental faculty; or requiring

medical intervention such as surgery, hospitalization,

or physical rehabilitation. As used in the guidelines,

the definition of this term is somewhat different than

that used in various statutes.

U.S.S.G. 1B1.1, comment. (n.1(j)).

-12-

child"); United States v. Corbin, 972 F.2d 271, 272 (9th Cir.

1992) (victim was struck on head twice with a metal object

resembling a gun, causing a laceration that required a two-layer

closure using more than 25 sutures).8 The government cites no

case in which 2119(2) was applied based on "extreme physical

pain" without some evidence of actual pain.

Perhaps recognizing the weakness of its "extreme physical

pain" argument, the government argues that the enhancement

alternatively may be upheld because the victim also suffered

extreme mental trauma. This claim is flawed not only because the

district court did not make such a finding but also because there

is no evidence that Crespo suffered a "protracted loss or

impairment of the function of a . . . mental faculty," as

required by 1365. The presentence report states that Crespo

received no professional counseling or assistance in the

8 In two cases involving rapes, both decided under the

guidelines and one of them unpublished, the Sixth Circuit upheld

findings of "serious bodily injury" based on sections of the

guidelines other than the "extreme physical pain" provision. See

United States v. Tipton, 11 F.3d 602, 609-10 (6th Cir. 1993)

(impairment of mental faculty and medical intervention); United

States v. Newman, 931 F.2d 57, 1991 WL 63625 at *3 (6th Cir.

1991) (unpublished per curiam) (primarily relying on medical

intervention). In Newman, the court recognized that the

situation may not have satisfied a requirement of "extreme"

physical pain.

In another guidelines case involving rape, the Eighth

Circuit concluded that the definition of serious bodily injury

covers "any immediate serious physical trauma resulting from a

rape," but that the pain and suffering connected to a rape-

induced pregnancy is not encompassed by the definition. The

court held, however, that the pregnancy and its related tragic

consequences properly could serve as the factual predicate for an

upward departure. United States v. Yankton, 986 F.2d 1225, 1229-

30 (8th Cir. 1993).

-13-

aftermath of the crime, relying instead on the support of her

family and boyfriend. Although she told the probation officer

that the ordeal "has had a devastating effect on her life,

family, and consensual relationship," such generalities must fall

short of proof measuring up to "protracted . . . impairment of .

.. mentalfaculty"sufficienttojustifyanadditionalten-yearsentence.

To be sure, even a rape that causes no physical pain is a

unique and reprehensible physical and psychic invasion. The

effort of the district court and government to reflect the

severity of that crime through a flexible interpretation of the

"serious bodily injury" requirement is therefore understandable.

The statute by its terms, however, limits its application to

specific types of injury, and the government cites no legislative

history, nor has our own research uncovered any, suggesting that

the subsections were meant to be less than all-inclusive.9

To say that any rape, regardless of the circumstances, is

equivalent to these specified harms would broaden measurably the

limited category of injuries that Congress designated as

justifying a substantial increase in punishment for carjacking.

It would be, in effect, to add punishment for rape to the

carjacking scheme, which already represents somewhat unusual

9 Although a rape of any type surely is a sufficiently

serious physical invasion to justify a sentencing

enhancement, the statute as written requires evidence

of the specific, objective types of harm set out there.

It may be that, in choosing the definition of serious

bodily injury contained in 1365, a statute that

penalizes the tampering of consumer products, see supra

at 10, Congress did not recognize the limitations of

its language.

-14-

federal intervention into a typically state-law realm. We

decline to stretch the language Congress wrote without some

indication that it meant the provision to be elastic. See, e.g.,

United States v. Boots, 80 F.3d 580, 588 (1st Cir. 1996)(the rule

of lenity holds that "the harsher of two possible readings of a

criminal statute will be enforced only when Congress has spoken

clearly").10

The defendant's sentence thus must be vacated. If the

government continues to seek the 2119(2) enhancement, it must

provide some basis upon which the court may conclude that one or

more of the statutory conditions of harm occurred. Contrary to

defendant's assertion, an evidentiary hearing is not necessary.

Rule 32 of the Federal Rules of Criminal Procedure requires that

counsel for the defendant and the government be given an

opportunity to comment at the sentencing hearing on matters

relating to the appropriate sentence, but the decision whether to

conduct an evidentiary hearing is within the court's discretion.

Fed. R. Crim. P. 32(c)(1).11 The court, however, must resolve

10 Indeed, we think there is some question whether the rape

is at all relevant to defendant's punishment under 2119 since

it was not the "force and violence" by which he gained control of

the vehicle. Arguably, the conduct punishable under 2119

occurred at the Isla Verde Marginal Road when Vazquez forcibly

took control of Crespo's car, and the subsequent abduction and

rape were separate violations of state law. We need not consider

the scope of a carjacking here, however, because defendant does

not raise such a claim. He argues only that the court could not

apply the enhancement in the absence of proof of "extreme

physical pain" or some other listed harm.

11 The case relied on by defendant, Specht v. Patterson, 386

U.S. 605 (1967), is inapposite. In that case, the Court ruled

that due process required notice and a hearing before the

-15-

objections to the presentence report, and make findings on any

controverted matter taken into account in sentencing. Id.12

For the foregoing reasons, we affirm defendant's conviction,

but vacate the sentence and remand for resentencing consistent

with the principles expressed in this opinion.

defendant, who had been convicted for indecent liberties under

one Colorado statute, could be sentenced under the separate

Colorado Sex Offenders Act, which contained more severe

penalties. Here, the enhancement at issue is part of the statute

under which the defendant was charged and convicted.

12 We note that the government partially defended admission

of the rape evidence based on an assertion that 2119 required a

jury finding beyond a reasonable doubt on "serious bodily

injury," and further claimed that the jury's verdict reflects

such a determination. The government's position is flawed in two

respects. First, the verdict does not support such a

determination because the jury made no specific findings on the

defendant's conduct. Second, we have held that the alternative

penalty provisions of 2119 are sentence enhancers whose

applicability is a matter for the judge, not the jury. See

Rivera-Gomez, 67 F.3d at 1000. Accord United States v. Oliver,

60 F.3d 547, 552-53 (9th Cir. 1995); United States v. Williams,

51 F.3d 1004, 1009 (11th Cir. 1995).

-16-