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Paul M. Glickman, with whom Glickman Turley LLP, was on brief for appellant Pagán-Ferrer.
Lydia Lizarríbar-Masini, for appellant Morales-Rosado.
Juan A. Pedrosa-Trápaga, with whom Juan A. Pedrosa Law Office, PSC, was on brief for appellant Pacheco-Cruz.
James L. Sultan, with whom Jonathan P. Harwell and Rankin & Sultan, was on brief for appellant Vidal-Maldonado.
Sharon M. McGowan, Attorney, U.S. Department of Justice, Civil Rights Division, Appellate Section, with whom Jessica Dunsay Silver, Attorney, and
Thomas E. Pé rez, Assistant Attorney General, was on brief for appellee.
Before TORRUELLA, LIPEZ and THOMPSON, Circuit Judges.
TORRUELLA, Circuit Judge.
A jury convicted four former San Juan Municipal Police Department officers of charges stemming from the excessive use of force against a citizen who was violently beaten to death while in police custody. Appellants, now seeking to challenge their respective convictions and sentences, raise a number of issues on appeal, including one which requires us to examine the relationship between the Ex Post Facto Clause of the Constitution and the " one book" rule of the U.S. Sentencing Guidelines. We ultimately find none of the Appellants' arguments meritorious and thus affirm. We begin with the facts.
In the early morning hours of July 20, 2003, José Antonio Rivera-Robles (" Rivera" ) was running down the street, yelling that he was being followed and that " they" were trying to kill him. It was later discovered that he was under the influence of cocaine. Two San Juan Municipal Police Department (" SJMPD" ) officers who were patrolling the area spotted Rivera and got out of their patrol car to investigate. Rivera pushed past them and stole their patrol car, injuring the arm of the officer who tried to hold onto the car door as Rivera sped away. The officers radioed for help and a search for both Rivera and the patrol car began.
Rivera, meanwhile, had abandoned the car and entered a Citgo gas station's convenience store, appearing frightened but uninjured to those in the store. Rivera hid behind the store counter, scaring away the store clerk, who ran outside to look for help. Several officers who were searching for Rivera drove by the gas station at that time, and the store clerk was able to flag them down. When Rivera ran outside, he was confronted by Officers Ángel González-Almeida (" González" ), Marieli Torres-Rivera (" Torres" ), and Wilbert Salas-López (" Salas" ), all with guns drawn. As the officers approached, Rivera ran to and began pulling on a gas pump, stopped, and then walked back towards the officers. González pushed Rivera to the ground, face down, and Salas straddled him. At this point, Sergeant Aarón Vidal-Maldonado (" Vidal" ), the highest ranking officer present and one of the four Appellants in this case, arrived at the gas station. Vidal helped Salas handcuff Rivera. At this point, however, instead of transporting the now-restrained suspect to the station house, several officers began assaulting Rivera.
Officer Elías Perocier-Morales (" Perocier" ) kicked Rivera in the head and left shoulder area with such force that it nearly knocked Salas, who was still on top of Rivera, over. Next, Officers Carlos Pagán-Ferrer (" Pagán" ), Juan Morales-Rosado (" Morales" ), and José Pacheco-Cruz (" Pacheco" ), the three remaining Appellants in this case, arrived in the SJMPD's Impact Unit van. The Impact Unit officers formed a circle around Rivera and began kicking him with booted feet in the head and upper body while Vidal and Salas restrained him. Some of the officers, including Pagán, punched Rivera in the face.
Vidal eventually ordered that Rivera be taken to the Impact Unit station house, announcing " [t]his one's mine, this one's mine." When he arrived and exited the police car, Rivera was barely conscious and fell to the ground. Officer Juan Monserrate (" Monserrate" ) kicked the still-handcuffed Rivera in the face while Vidal looked on silently. Rivera was then carried
into the station, dropped on the floor, and had his handcuffs removed. By this time, his breathing was labored and his face was " practically disfigured." Someone called emergency medical services.
When the emergency responders arrived, they were told that Rivera had been lying on the floor, unconscious, for ten minutes. They were unable to revive Rivera, and he was declared dead at the scene. An autopsy later indicated that Rivera had suffered trauma injuries to approximately thirty places on his body and had died from brain hemorrhaging. The report also stated that cocaine was found in his system and may have contributed to the cause of death, but the coroner later revised her report to indicate that blunt force trauma was the cause of death. A forensic expert agreed. A second forensic pathologist corroborated that the victim's injuries were consistent with kicks, punches, and blunt force trauma. In this second pathologist's opinion, the cause of death was not cocaine. He also testified that Rivera's facial injuries were not from a fall. A third pathologist, however, testified for the defense that it was " a medically reasonable probability" that the victim died because of cocaine use and that he did not find any fatal injuries on Rivera's body.
Puerto Rico Police Department officials began an investigation, and Vidal admitted to being at the Citgo station that night, but he said that no one had assaulted Rivera. Pagán, Morales, and Pacheco all claimed that they had not been at the Citgo station at all that night. They also denied knowing how Rivera sustained his injuries. Several years later, in 2008, the FBI began investigating the incident. Vidal continued to claim that no one had assaulted Rivera, and Pagán, Morales, and Pacheco continued to claim that they were not present at the Citgo station that night. They also denied having punched, kicked, or otherwise assaulted Rivera. Morales denied hearing that any officers had gone to the Citgo that night. He later repeated that statement to a federal grand jury.
On July 8, 2008, a federal grand jury indicted Vidal, Morales, Pacheco and Pagán (collectively, the " defendants" ) along with two other SJMPD officers, Perocier and Officer Eliezer Rivera-González, in a 17-count indictment. The latter two pled guilty and became cooperating witnesses. Vidal, Morales, Pacheco, and Pagán were indicted for depriving Rivera of his constitutional rights by using excessive force resulting in bodily injury or death while acting under color of state law, in violation of 18 U.S.C. § 242. They were also indicted for making false statements, in violation of 18 U.S.C. § 1001, and for obstructing justice, in violation of 18 U.S.C. § 1512(b)(3).
On August 13, 2009, after twenty-six days of trial, a jury found all four defendants guilty of making false statements and obstructing justice. Morales was convicted of perjury before the grand jury, in violation of 18 U.S.C. § 1503(a). As to the civil rights charges, the jury found Morales and Pagán guilty of depriving Rivera of his rights and causing bodily injury. Vidal was found guilty of causing Rivera's death by failing to intervene and failing to keep Rivera from harm by officers under his supervision, in violation of 18 U.S.C. § 242. Vidal was also charged with kicking Rivera at the Impact Unit station house, in violation of 18 U.S.C. § 242, but he was found not guilty as to that count. Pacheco was found not guilty of using excessive force resulting in injury or death.
Vidal was sentenced to 360 months of imprisonment, Morales and Pagán to 120 months of imprisonment, and Pacheco to 57 months of imprisonment.
On appeal, defendants collectively have presented a total of eight issues which they believe warrant vacating their respective convictions or sentences: 1) the denial of a motion to supplement the record; 2) the denial of a motion to declare a mistrial; 3) the denial of a motion to suppress an identification; 4) the insufficiency of the evidence; 5) the improper wording of a jury instruction; 6) the existence of a material variance; 7) the wrongful application of a revised Sentencing Guidelines manual; and 8) the denial of a downward departure at sentencing. Not every defendant asserts every claim. For the sake of clarity, we elaborate on the facts relating to each issue on appeal separately, and we take each issue in turn.
A. Denial of Rule 10(e) motion to supplement the record
Defendants Pagán and Vidal argue that the district court erred in denying their joint motion to supplement the record on appeal pursuant to Federal Rule of Appellate Procedure 10(e) (" Rule 10(e)" ). We begin with a review of the factual and procedural background related to this claim.
On August 2, 2011, while this appeal was pending, Pagán and Vidal filed with the district court a joint motion seeking to supplement the record on appeal pursuant to Rule 10(e). Pagán and Vidal argued that at least some portion of the jury selection proceedings were closed to the public and that the record did not clearly reflect that fact. Accordingly, they sought to conform the record to reflect what truly occurred below or, alternatively, to supplement the record to correct a material omission regarding the closure. They also claimed that an evidentiary hearing was required.
As record evidence of possible closure, Pagán and Vidal cited statements by the district court judge during a portion of the jury selection proceedings:
The Court is celebrating this hearing here in the jury room, since the Court is aware that we cannot ask the questions in the courtroom because an answer by a person, a petit juror, a potential petit juror, could potentially contaminate the entire panel and consequently the parties have all agreed to hold this phase of the jury selection here in the jury room.....
They also provided affidavits from Pagán, Pagán's trial attorney, Vidal, and family members of both men stating that the public had been excluded from jury selection proceedings and that, at various times, officers of the court or the defense attorneys instructed family members that they could not attend portions of the jury selection proceedings. Critically, the affidavits also reveal that counsel for both Pagán and Vidal were aware of the alleged closure at the time it occurred, discussed the closure issue with their clients, and elected not to object to the closure. Pagán and Vidal concluded by requesting that the district court hold a hearing on the question of whether the jury selection proceedings were open or closed, and that it correct the record to accurately reflect the nature of the proceedings.
The district court, in an order by the same judge who had presided over the jury selection proceedings in question, denied the joint motion without holding a
hearing. After noting that Rule 10(e) allows a trial court to consider a dispute as to the record even while an appeal is pending, it explained that the request in this case was " untimely."  Specifically, the district court viewed the defendants' request as an impermissible attempt to add new information to the record, and it expressed concern that granting the motion would allow defendants to sandbag the courts with issues that should have been raised during trial while the trial judge had an " opportunity to rectify the alleged wrong."
2. Applicable Law and Analysis
Federal Rule of Appellate Procedure 10(e)(1) states, in pertinent part, " [i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly." Fed. R.App. P. 10(e)(1). Significantly, the rule requires that the district court settle the matter, not that it hold an evidentiary hearing. United States v. Brika, 416 F.3d 514, 530 (6th Cir.2005). Federal Rule of Appellate Procedure 10(e)(2) adds that " [i]f anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded." Fed. R.App. P. 10(e)(2).
We review the district court's denial of a Rule 10(e) motion for abuse of discretion. Brika, 416 F.3d at 529; see also United States v. Kelly, 535 F.3d 1229, 1242 (10th Cir.2008); United States v. Franklin, 250 F.3d 653, 663 (8th Cir.2001). " When a dispute concerning whether the record truly discloses what occurred in the district court has been submitted to the district court, the court's determination is conclusive absent a showing of intentional falsification or plain unreasonableness." United States v. Serrano, 870 F.2d 1, 12 (1st Cir.1989) (internal citations and quotation marks omitted); see also Brika, 416 F.3d at 529.
According to Pagán and Vidal, the district court abused its discretion when it denied their Rule 10(e) motion without an evidentiary hearing because the record suggests, but does not unequivocally show, that the jury selection was at least partially closed to the public. They argue further that the denial of their 10(e) motion prevents them from having a complete record to be able to brief this court on the closure issue. We disagree.
As the district court correctly observed, Rule 10(e) is a mechanism by which the court can " correct omissions from or misstatements in the record for appeal." Order at 2, Aug. 26, 2011, ECF No. 557 (citing S & E Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d 636, 641 (6th Cir.1982)). The Rule does not, however, " allow the court to add to the record on appeal matters that might have been but were not placed before it in the course of the proceedings...." United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.1986); see also Anthony v. United States, 667 F.2d 870, 875 (10th Cir.1981)
(holding that 10(e) motion to supplement the record must be denied where appellant knew of but failed to introduce the relevant evidence at trial because Rule 10(e) " does not grant a license to build a new record" ). In this case, the district court denied the Rule 10(e) motion because it " saw no need" to supplement the record with what it characterized as untimely or new information not within the purview of Rule 10(e).
A review of the record supports the reasonableness of the district court's finding that neither a hearing nor supplementation to clarify the record was necessary in this case. Despite Pagán and Vidal's assertions that the record is unclear on the status of the jury selection proceedings, the transcripts clearly delineate the events below. On June 10, 2009, after polling potential jurors, the district court was alerted to the fact that multiple jurors had prior knowledge of the case at hand. The court then elected to question each juror individually on the issue, and it discovered that some jurors had read or discussed a recent newspaper article describing the guilty plea of a co-defendant in the case. Concerned about possible contamination, the judge— with the assistance of defense counsel— sought to discover what each juror had heard and from whom the juror had heard it.
The court held these individual juror interviews in the jury room, not the courtroom, in the presence of defense counsel and their clients. The transcripts explicitly mark when the proceedings shifted to the jury room with an " Examination in the jury room" notation, Tr. of Trial Voir Dire 51, June 10, 2009, and they also mark when the proceedings returned to open court, with a parenthetical notation that " [t]he following proceedings were had in open court," id. at 145. Counsel for Pagán did request a sidebar with the judge immediately prior to the jury room voir dire, but it was not to object to the closure of jury selection proceedings; rather, he requested only that the court ask more explicit questions regarding contamination of the entire pool before moving to the jury room for individual examinations. The court readily obliged. In fact, the judge commented that trial counsel for Pagán had " taken the lead on this" and that it had no objection if defense counsel wished to " continue suggesting to the Court questions relating to the potential contamination of these three jurors by outside information," during the jury room proceedings. Id. at 51. The judge also provided time for counsel to speak with him about the jury selection procedures before the individual jurors were sent to the jury room for questioning. Again, no one objected to conducting the questioning in the jury room.
The following day, on June 11, the transcript also clearly states that individual jurors were being questioned about possible contamination within the confines of the jury room. The district court judge, immediately ...