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United States v. Berrios-Miranda

United States Court of Appeals, First Circuit

March 22, 2019

JORGE BERRIOS-MIRANDA, a/k/a Yoyo, Defendant, Appellant.


          Raymond L. Sanchez Maceira on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Mainon A. Schwartz, Assistant United States Attorney, U.S. Attorney's Office, on brief for appellee.

          Before Lynch, Thompson, and Barron, Circuit Judges.

          THOMPSON, Circuit Judge.

         Today we turn to the final chapter of Jorge Berrios-Miranda's ("Berrios") sentencing challenge, in which he contends that the district court violated his procedural due process rights when it denied his request to challenge the reliability of his victim's testimony by cross-examining the victim at Berrios's resentencing hearing. Spying no error in the district court's handling of the matter, we affirm.


         We provide the following pertinent details to flesh out the backdrop for this appeal.

         Berrios was one of several men who kidnapped and held hostage Luis F. Bello-Javier ("the victim") in August 2008. Over the course of the several days they held the victim against his will, the kidnappers regularly beat him and deprived him of food. After the FBI got involved, though, the kidnappers released the victim and were apprehended. Pursuant to a plea agreement, Berrios pleaded guilty to kidnapping for ransom in violation of 18 U.S.C. §§ 1201(a)(1) and (2).

         One of Berrios's codefendants proceeded to a trial, during which Berrios's conduct during the kidnapping was described not only by the victim, but also by Berrios himself. The victim detailed how Berrios inflicted serious physical and psychological injuries on him during the abduction and "mistreated [him] the most." For his part, Berrios testified that he beat and threatened to kill the victim, and also placed his gun against the victim's head to intimidate him. Berrios also laid out how "constantly with the crowbar of the car [he] continued to torture" the victim, explaining that, "[t]he majority of the time, the one who was with [the victim] was me, Jorge Berrios."

         This brings us to Berrios's sentencing proceedings (which postdate the codefendant's trial), in advance of which Berrios filed a motion requesting a copy of the as-yet-unseen-by-Berrios transcripts of testimony from his codefendant's trial. The district-court judge denied the motion, but relied upon the victim's and Berrios's trial testimony in rejecting the parties' recommended sentence, instead imposing a harsher sentence due to the fact that Berrios, according to the victim, had "mistreated [him] the most."

         That led to Berrios's first sentencing challenge before this court, and we agreed with his position: "the record that was available to [Berrios] did not otherwise contain the information used by the district court in imposing the sentence," and the fact that the victim testified that Berrios mistreated him more than anyone else was "both new and significant under our case law," so we held that the reliance below on the victim's testimony could not "be deemed harmless." See United States v. Berrios-Miranda, No. 13-1808 (1st Cir. June 19, 2015) (judgment).

         Back in district court for the resentencing hearing, things didn't play out to Berrios's liking. After the district-court judge granted Berrios access to the transcripts "relevant to the mistreatment of the victim by [Berrios]" (the testimony given by the victim and by Berrios), Berrios moved to compel the government to produce the victim "to be cross examined by [him] during [re]sentencing, to contest [the victim]'s statement that Berrios was: 'the one who mistreated [the victim] the most.'" To hear Berrios tell it, the victim's statement, which was not previously subject to cross-examination at trial at all by Berrios, was "questionable." The district-court judge ordered Berrios to "explain how further questioning of the victim" would "challenge as inaccurate and unreliable" the testimony that Berrios's own statements had "essentially corroborated." Berrios wanted to challenge the reliability of the victim's statement that he was the worst of the tormenters: the victim had been blindfolded during much of the abduction and therefore could not always reliably identify his aggressors, plus certain details provided at trial had not come up during the victim's 2009 PSR interview. He also hoped to elicit testimony that Berrios saved the victim's life. The judge denied the motion because cross-examination "would be a bald attempt to mount an attack to [the victim's] credibility" that "would only serve to further victimize him," and, in any event, Berrios was not entitled to cross-examine the victim -- he had all the relevant information he needed and "had a fair opportunity to comment on it or otherwise challenge" that information.

         Ultimately, the district-court judge sentenced Berrios to a within-guidelines term of 136 months -- eight months less than the previous sentence. In so doing, the judge stated she had "carefully evaluated" Berrios's "conduct while the kidnapping victim was in his custody, as it was described at trial, not only by him but by the victim himself." As part of that, the judge found that Berrios was the one who "principally" held the victim and, based on the record, Berrios was responsible for "mistreat[ing] [the victim] the most." The judge also took into account Berrios's corroborative testimony: "I told him that if he screamed, that I was going ...

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