APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
John R. Martin, with whom Laura Maldonado-Rodríguez, were on brief, for appellant.
Luke V. Cass, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and John A. Mathews II, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Thompson and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Appellant Xavier Jiménez-Bencevi (" Jiménez" ) was convicted of tampering with a federal witness, possession of a firearm in furtherance of a crime of violence, use of a firearm during and in relation to crimes charged in the indictment, and use of a cell phone in attempting to commit kidnapping. Because the acts resulted in the death of the witness, Delia Sánchez-Sánchez (" Sánchez" ),
Jiménez faced the death penalty, though the jury ultimately rejected that punishment and instead recommended a sentence of life imprisonment without the possibility of release.
Jiménez now appeals, complaining that his trial was fatally flawed in three respects. First, he argues that the district court violated his immunity agreement with the government when it insisted that a defense expert be informed of a proffer made in an attempt to negotiate a plea. Second, he claims that the district court improperly restricted his right to cross-examine two cooperating witnesses by preventing
Jiménez from inquiring into their exposure to a death-penalty-eligible offense. Finally,
Jiménez contends that, with respect to the witness tampering charge, the evidence was insufficient to support his conviction because the government did not prove beyond a reasonable doubt that
Jiménez murdered Sánchez to prevent her from providing evidence to federal authorities regarding a federal crime. Though we find no merit to
Jiménez's second and third claims of error, we agree that the district court improperly violated the immunity agreement. Accordingly, for the reasons that follow, we reverse.
On June 21, 2010, Sánchez was shot and killed in broad daylight in front of the Colmado Hernández mini market in Bayamón, Puerto Rico. The entire incident was captured on the market's security camera. According to the footage, a car carrying Sánchez and two others -- later identified as Ronnie Pérez-Albino (" Pérez" ) and his mother Gloria Albino-Figueroa (" Albino" ) -- arrived at the Colmado Hernández at approximately 2:00 p.m. Both Sánchez and Albino exited the vehicle, and almost
immediately thereafter a white Honda Accord arrived. Two men, neither of whom could be identified from the video, exited the Honda, grabbed Sánchez, and attempted to force her inside their car. Sánchez resisted and screamed, and a struggle ensued. She eventually fell to the ground, at which point one of the men -- wearing jeans and a black shirt with a white design -- removed from his waistband a pistol which appeared to have been modified to fire automatically and shot Sánchez seven times. With Sánchez still lying on the ground, the two men got back into the white Honda and drove away.
Following an investigation, authorities came to believe that the shooter was
Jiménez, the owner of a drug point at the Falí n Torrech housing project in Sierra Bayamón and a fugitive who had posted bond and fled from a pending Puerto Rico murder charge. His brother Alexis
Jiménez (" Alexis" ) was also Sánchez's boyfriend. Jiménez was indicted on March 23, 2012, and arrested three days later. On January 10, 2013, the grand jury returned the present superseding indictment. This four-count indictment charged: (1) tampering with a witness in violation of 18 U.S.C. § 1512(a)(1)(C) by killing Sánchez through the use of a firearm with the intent to prevent her from communicating to a federal law enforcement officer information related to the commission or the possible commission of a federal offense; (2) possession of a firearm modified to fire automatically in furtherance of the crimes charged in Counts One and Four of the indictment, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (B)(ii); (3) using a firearm during and in relation to the crimes charged in Counts One and Four of the indictment, in violation of 18 U.S.C. § 924(j); and (4) using a cell phone in attempting to commit the kidnapping of Sánchez, in violation of 18 U.S.C. § 1201(a)(1). The indictment also included a notice of special findings necessary for the government to seek the death penalty.
Approximately one month before the trial's April 15, 2013, start date,
Jiménez approached the government regarding the possibility of entering a guilty plea in exchange for the removal of the death penalty. In addition to agreeing to a sentence of life without the possibility of release, the government required
Jiménez to provide a proffer containing both a detailed admission of his guilt to all the crimes he was charged with and any known information regarding other federal offenders. The parties also agreed that the proffer would be covered by direct use immunity. The agreement provided that
the United States agrees that no statements contained in the written proffer will be used against [Jiménez] directly in any criminal case in the District of Puerto Rico. However, the United States may make derivative use of and may pursue any investigative leads suggested by any statements or information provided, including use in any criminal case against [Jiménez]. That is, the United States remains free to investigate any leads derived from information provided by [Jiménez], and to use any evidence gained as a result of such investigation in any subsequent prosecution of [him]. Further, should [Jiménez] subsequently testify in a manner inconsistent with any information provided in the written proffer, he may and will be cross-examined, confronted and impeached by these statements.
After reviewing Jiménez's proffer, the government ultimately rejected his offer to plead guilty, and the case proceeded to trial.
The trial's guilt phase lasted three days, and the government presented over ten witnesses. Carmen Fernández-Ortega (" Tata" ), a resident of the Falí n Torrech housing project, testified that both her husband and
Jiménez's brother Alexis sold crack cocaine and marijuana for Jiménez at the drug point. She explained that she and Sánchez were friends and that Sánchez was vocal about her disapproval of her boyfriend Alexis's involvement in the drug operation. Indeed, according to Tata, whenever Sánchez would arrive at the drug point,
Jiménez would become upset and a confrontation would ensue.
Tata further testified that, as " a joke," she and Sánchez would record each other's conversations on their cell phones and that many of those conversations involved
Jiménez. She elaborated on one conversation in particular, where Sánchez stated that she would " turn him in to Justice." Tata's husband overheard this recording and informed
Jiménez. Jiménez subsequently listened to the recording himself, became upset, hit Tata in the chest with the phone, and left, taking the phone with him.
Pérez and Albino also testified, explaining how and why they brought Sánchez to the Colmado Hernández mini market the day she was murdered. Pérez testified that
Jiménez had heard a cell phone recording of Sánchez in which she stated that she would hand him over to federal agents, and as a result
Jiménez had asked Pérez to locate Sánchez for him because he wanted to stop her from talking to the authorities. To accomplish this, Pérez enlisted the help of his mother, Albino. According to Albino, Sánchez was her neighbor and the two had a friendly relationship which often involved Albino giving Sánchez a ride to the Colmado Hernández mini market. Pérez and Albino exploited this relationship and offered to drive Sánchez to the Colmado Hernández mini market on June 21, 2010, the day of the murder, so that Sánchez could withdraw money there. Pérez explained that once Sánchez accepted their offer, he informed
Jiménez that they would arrive around 2:00 p.m.
Both Pérez and Albino identified the shooter in the video as
Jiménez. Pérez stated that after the murder, Jiménez called him and told him that he " wanted to shoot her in the forehead, but that he had to bring the chip down."
Jiménez added that Pérez needed " to shut [his] mouth or the same thing would happen to [him]." Albino corroborated this, testifying that " Xavier took out a pistol from his waist and shot [Sánchez]." She added that
Jiménez killed Sánchez " [b]ecause she was going to hand him over to the Feds."
In addition to these three witnesses, the government linked
Jiménez to the crime through the following evidence: testimony of numerous police, forensic, and cooperating witnesses; the previously-described surveillance footage outside the Colmado Hernández mini market; phone records between
Jiménez and Pérez; photographs of Jiménez found in a wallet in the white Honda Accord; and the combination of video footage at a Kentucky Fried Chicken showing a man with the same black shirt and white design as the shooter purchasing food, and a KFC food receipt (found in the Honda Accord) showing
Jiménez contemporaneously purchasing food there. The government also provided the testimony of Luz Enid Aponte, Sánchez's probation officer, who testified that on June 8, 2010, an FBI task force officer asked her not to visit Sánchez because Alexis had been stopped and questioned about whether Sánchez was providing information to
the government. When Aponte and Sánchez met approximately one week later as part of Sánchez's probation requirements, Sánchez confirmed to Aponte that she was cooperating with the FBI, that
Jiménez owned a drug point at Falí n Torrech, and that he had threatened her.
Jiménez's defense strategy, meanwhile, was to create reasonable doubt by suggesting that the shooter in the video was not
Jiménez but rather Raymond Jiménez (" Raymond" ), Jiménez's brother and the twin brother of Alexis. To accomplish this,
Jiménez intended to employ a two-prong approach. First, he worked to discredit Pérez and Albino through cross-examination aimed at establishing that they were either protecting or in fear of the real shooter.
Jiménez introduced telephone records between Pérez and two major drug offenders -- José
Jiménez-Echevarrí a (" Lechón" ) and Harold Ayala-Vásquez (" Harry" ) -- throughout the day of Sánchez's murder, and Pérez admitted that he never told the agents about these calls. Moreover, Pérez conceded that he gave the agents several different versions of the events surrounding the shooting.
Jiménez also elicited testimony to the effect that Sánchez had bragged that she was going to take everybody down and that " everybody" included both Lechón, who was in a relationship with Albino, and Raymond.
Jiménez next aimed to demonstrate that Pérez and Albino were biased as a result of the plea and cooperation agreements they each had signed with the government. According to the agreements, Pérez and Albino each agreed to plead guilty to tampering with a witness and to cooperate with the government against
Jiménez, and, in exchange, the government would recommend a sentence of no more than seventy months. When
Jiménez's counsel asked Pérez if, " [w]hen you were arrested for your involvement in this case, a death eligible Indictment was filed against you?" the government objected, and a bench conference ensued. During the sidebar, the government argued that Pérez was only charged with tampering with a witness, which was not a death-eligible offense.
Jiménez, meanwhile, argued that although Pérez and Albino were indicted on non-death-eligible offenses, the initial complaints filed against them were certified as potential death-penalty cases, and he had a right to probe whether the ultimate indictments not charging death-eligible offenses were the result of a covert agreement with the government.
The district court reviewed Pérez's indictment and rejected
Jiménez's argument, concluding that " [t]his is not a death penalty eligible case, what he pled to." It added that Pérez
pled under 10-452 with tampering with a witness. That's what he was charged with. Therefore, it was totally misleading to indicate to the jury or try to make the jury understand that at one point in time he was a death penalty eligible defendant. He was never a death penalty eligible defendant. It's as simple as that.
The bench conference then ended, and Jiménez continued with his cross-examination, exploring other aspects of Pérez's plea and cooperation agreement, as well as other topics such as Pérez's involvement
with drugs, his destruction of property, and violations while in federal prison.
Following the cross-examination, the parties revisited the death-penalty issue outside the presence of the jury. During this exchange, the district court sought more information so it could determine whether Pérez's and Albino's indictments were indeed the result of an agreement with the government. The government responded that there was no cooperation agreement in place at the time the indictment was filed and that the reason the government decided not to indict for a death-eligible offense was because it lacked any evidence that either Pérez or Albino knew that
Jiménez planned to kill Sánchez at the Colmado Hernández mini market. According to the government, it wanted to charge " what [it] could reasonably prove beyond a reasonable doubt for sure."
Still not entirely convinced, the district court proceeded to question both Pérez's and Albino's defense counsels. Both attorneys confirmed what the government had proffered, explaining to the district court that there was never a deal trading cooperation for a non-death-eligible " wishy washy" indictment. They also emphasized that even before the indictments were filed, both attorneys were adamant in communications with the government that neither Pérez nor Albino took Sánchez to the mini market knowing that she was going to be killed. Given all of this information, the district court upheld its initial ruling prohibiting
Jiménez from questioning either Pérez or Albino about exposure to the death penalty. It emphasized, however, that except for the death-penalty inquiry,
Jiménez could ask any question he wanted on the issue of ...