USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1781
UNITED STATES OF AMERICA,
Appellee,
v.
HERMINIO PEREZ-PEREZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Selya and Boudin, Circuit Judges,
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and Saris,* District Judge.
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Harry Anduze Montano for appellant.
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Louis Peraertz, Department of Justice, with whom Deval L.
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Patrick, Assistant Attorney General, Dennis J. Dimsey and Lisa J.
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Stark, Department of Justice, were on brief for the United States.
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December 26, 1995
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*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. Herminio Perez Perez was
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formerly a sergeant with the Puerto Rico Police Department.
In 1989, he was charged under Puerto Rico law with attempted
murder and concealing evidence. The charges stemmed from an
incident in which Perez allegedly shot and wounded two riders
on a motorcycle while seeking to bring it to a halt. Perez
was tried in Puerto Rico Superior Court and acquitted by the
jury on both counts.
In 1992, Perez was indicted by a federal grand jury, in
connection with the same shooting incident, and charged with
deprivation of rights under color of law, in violation of 18
U.S.C. 242, and using a firearm during the commission of a
crime of violence, in violation of 18 U.S.C. 924(c). In
1993, a jury convicted Perez on both charges, and he was
sentenced to 106 months' imprisonment. He now appeals,
raising a variety of different claims of error.
1. In the district court, Perez moved to dismiss the
federal convictions on double jeopardy grounds. Although he
conceded that successive state and federal prosecutions were
permitted under the doctrine of "dual sovereignty," Perez
maintained that Puerto Rico should not be considered a
sovereign distinct from the federal government. The trial
judge denied the motion, adhering to precedent in this
circuit. United States v. Lopez Andino, 831 F.2d 1164, 1167-
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68 (1st Cir. 1987).
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Successive prosecutions even by the same sovereign do
not violate the double jeopardy principles if the second
prosecution involved substantively different offenses. Under
the test of Blockburger v. United States, 284 U.S. 299, 304
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(1932), readopted in United States v. Dixon, 113 S. Ct. 2849
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(1993), offenses are "different" for this purpose so long as
"each [offense] requires proof of an additional fact which
the other does not". Even were we here concerned with a
single sovereign, Perez' claim would fail under Blockburger
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because the federal offenses and the Puerto Rico offenses do
have different elements.
The attempted murder charge under Puerto Rico law,
unlike the federal civil rights offense, requires proof that
a defendant acted with the intent to kill or with the
foreseeable consequence of causing death. P.R. Laws Ann.
tit. 33 3062, 4001 (1991); People v. Betancourt Asencio,
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110 P.R. Dec. 510 (1980). Conversely, the federal civil
rights charge in this case required proof of elements not
required by the attempted murder charge, including a showing
that the defendant acted under color of law. 18 U.S.C.
242.
The only two charges that even vaguely resembled each
other are the two just discussed. The remaining charges--
concealment of evidence under local law and the firearms
violation under federal law--are not even arguably the same
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charge as each other or as either the attempted murder or
civil rights charge. In sum, Blockburger disposes of the
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double jeopardy claim, so the result would be the same even
if Lopez Andino had never been decided.
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2. As a fall-back position, Perez argues that under the
doctrine of collateral estoppel, the federal prosecution was
barred because it required relitigation of factual issues
resolved in Perez' favor during the Puerto Rico trial. Perez
suggests that his acquittal on murder charges was equivalent
to a finding that he had not used unreasonable force,
unreasonable force being the premise of the federal civil
rights charge. United States v. McQueeney, 674 F.2d 109, 113
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(1st Cir. 1982).
Although the doctrine of collateral estoppel applies in
criminal cases, Ashe v. Swenson, 397 U.S. 436, 443-44 (1970),
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the party to be precluded must have been the same as, or in
privity with, the party who lost on that issue in the prior
litigation. United States v. Bonilla Romero, 836 F.2d 39,
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42-44 (1st Cir. 1987). Perez makes no effort to adduce facts
showing privity in this case between federal and Puerto Rico
prosecutors, possibly because he thinks that his "single
sovereign" argument establishes an identity between the two
governments, an argument this court has previously rejected
in Bonilla Romero itself. Id.
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But all this makes no difference to the outcome, for
even assuming identity or privity among prosecutors, Perez
has not shown that any fact previously determined in his
favor in the local trial was relitigated in the federal case.
A defendant can be acquitted of attempted murder even if he
used excessive force. To be sure, Perez could have sought to
show from the court records of the first trial that the
excessive force issue, or some other issue critical in the
federal trial, was actually tried and necessarily decided in
his favor in the first case, but he has made no such showing
here. United States v. Aquilar-Aranceta, 957 F.2d 18, 23
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(1st Cir. 1992). 3. Perez says that the trial judge erred
by instructing the jury, prior to closing argument by the
government, to "give close attention" to the prosecutor. The
trial judge made no similar remark before defense counsel's
closing, and Perez asserts that this discrepancy improperly
"carried the weight of the judge to one side of the balance."
Perez did not raise this issue in the district court when the
discrepancy could easily have been corrected, so we review
only for plain error. United States v. Olivier-Diaz, 13 F.3d
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1, 5 (1st Cir. 1993).
The challenged remark was innocuous in isolation and
could not have prejudiced the jury unless it were part of a
pattern of remarks favoring the government. No such pattern
is alleged or apparent from the record. Indeed, while
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discussing closing arguments generally, the judge admonished
the jury to "give your close attention to the [prosecution
and defense] attorneys while they address you." In the final
charge, the judge told the jury that he had no opinion in the
case and that anything suggesting otherwise should be
disregarded. We see no error, let alone plain error, in the
challenged remark.
4. Perez next asserts that the district court erred in
not permitting the defense to offer the testimony of Sergeant
Neftalie Hernandez Santiago to impeach the credibility of a
government witness, officer Ricardo Nieves Lopez. During
cross-examination, Nieves conceded that fellow police
officers, including Hernandez, had accused him of various
incidents of misconduct. Nieves maintained that these
allegations were baseless and had been made only to retaliate
for his testimony in Perez' previous trial. The defense
called officer Hernandez to elicit testimony that Nieves had
engaged in the alleged misconduct.
The district court in excluding the Hernandez testimony
referred to Fed. R. Evid. 608(b), which precludes extrinsic
evidence of bad acts (other than convictions) to support or
attack the credibility of a witness. The notion underlying
the rule is that while certain prior good or bad acts of a
witness may constitute character evidence bearing on
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veracity, they are not evidence of enough force to justify
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the detour of extrinsic proof. Thus, Rule 608(b) barred
Hernandez' testimony insofar as it was offered to show that
Nieves had a propensity to lie.
Of course, Hernandez' testimony would not only have
suggested that Nieves was of bad character but would also
have contradicted Nieves' own denials on the witness stand.
Impeachment by contradiction is a recognized mode of
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impeachment not governed by Rule 608(b), 28 C. Wright & V.
Gold, Federal Practice and Procedure 6118, at 103 (1993),
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but by common-law principles. United States v. Innamorati,
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996 F.2d 456, 479-80 (1st Cir. 1993), cert. denied, 114 S.
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Ct. 409 (1993). But, again largely for reasons of
efficiency, extrinsic evidence to impeach is only admissible
for contradiction where the prior testimony being
contradicted was itself material to the case at hand. Id.
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Here, Nieves' alleged misconduct was not material to Perez'
guilt or innocence.
Finally, Perez' brief says that Hernandez would also
have testified that Nieves' reputation for veracity was poor.
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Reputation evidence of this kind is sometimes admissible,
Fed. R. Evid. 608(a), although its weight is usually quite
limited--precisely because specific examples of
untruthfulness cannot be elicited in support. 3 J.
Weinstein, M. Berger & J. McLaughlin, Weinstein's Evidence
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para. 608[3], at 608-28 (1995). In all events, Perez did not
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advise the trial court of this facet of the proposed
testimony, so the argument is effectively lost. See Fed. R.
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Evid. 103(a)(2).
5. Finally, Perez claims that the trial court erred in
declining to adjust his sentence downward two levels for
acceptance of responsibility, pursuant to U.S.S.G. 3E1.1.
Since this claim was not made in the district court, our
review is limited to plain error. Olivier-Diaz, 13 F.3d at
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5. In support of his claim, Perez offers only a statement in
the presentence report indicating that he "expressed remorse
for his wrongdoing and accepted responsibility for same,"
although the probation officer ultimately concluded that
Perez was not entitled to a downward adjustment.
In all events, the record shows that Perez continued to
deny responsibility for his crime at sentencing, stating that
he lacked criminal intent at the time of the crimes and
declaring his innocence. Thus, there is no indication that
the trial judge committed an error, let alone plain error, in
denying a downward adjustment. U.S.S.G. 3E1.1(a). Perez'
further suggestion that the district court had to recite its
reasons for denying the downward adjustment is mistaken; the
reasons were and are apparent from the record. See United
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States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991).
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Affirmed.
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