APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO Hon. Francisco A. Besosa, U.S.
J. Gonzalez-Bothwell, with whom Eric Alexander Vos, Federal
Public Defender, District of Puerto Rico, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor,
Appeals Section, and Andrew S. McCutcheon, Assistant Federal
Public Defender, were on brief, for appellant.
M. Meconiates, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, were on
brief, for appellee.
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE
found Francisco Martínez-Mercado guilty of conspiracy
to deprive a person of civil rights in violation of 18 U.S.C.
§ 241. The district court then sentenced him to
eighty-seven months in prison. On appeal,
Martínez-Mercado challenges the sufficiency of the
evidence against him, the admission of evidence under Federal
Rule of Evidence 404(b), the exclusion of certain testimony,
the denial of his new-trial motion based on newly discovered
evidence, and the appropriateness of his sentence. For the
following reasons, we affirm.
we review the facts relevant to Martínez-Mercado's
sufficiency challenge in the light most favorable to the
government, we also "provide a more or less neutral
summary" of the facts relevant to his remaining claims
and reserve further exposition of those facts for our later
analysis. See United States v. Flores-Rivera, 787
F.3d 1, 9 (1st Cir. 2015).
events underlying Martínez-Mercado's conviction
took place in September of 2010. At that time,
Martínez-Mercado was working as a Task Force Officer
("TFO") for the Bureau of Alcohol, Tobacco,
Firearms and Explosives ("ATF"). He had previously
worked in the Drugs Division of the Puerto Rico Police
Department ("PRPD"), where Jorge Fernández
had been his supervisor. The alleged conspiracy included PRPD
officers Pedro López-Torres and Luis Ramos-Figueroa,
both of whom eventually cut a deal and testified on behalf of
trial, López-Torres testified that on September 15,
2010, Fernández told López-Torres that
Martínez-Mercado was "going to do a job in the
area of Carolina" and "need[ed] help in doing
that job." Fernández and López-Torres had
worked illegal "jobs" together in the past, and
López-Torres was conveniently serving in the Property
Division of the Carolina Criminal Investigations Unit at the
time. Based on Fernández's assurances that
Martínez-Mercado was trustworthy, López-Torres
eventually agreed to take a call from
Martínez-Mercado. Martínez-Mercado called
López-Torres almost immediately, and they arranged to
meet in person to discuss the job.
same day, López-Torres contacted Ramos-Figueroa,
"[b]ecause he was the person that [López-Torres]
trusted to do . . . illegal jobs." The two met up to
talk about the potential job in Carolina. Ramos-Figueroa
agreed to participate in whatever scheme might unfold.
later, López-Torres and Martínez-Mercado met at
a gas station to go over the details of the plan. According
to López-Torres, Martínez-Mercado said he had
hired "some thugs, meaning street criminals," to
break into an apartment to steal "money, jewelry and
controlled substances, drugs." Martínez-Mercado
explained that the apartment belonged to someone who had
recently been arrested by ATF. López-Torres agreed to
provide "security" and "communication"
using his police patrol car and radio. López-Torres
testified that he used his patrol car on jobs so "that
people would believe that a legal activity was being
conducted there by the police." Additionally, if he
heard a complaint come in over the radio, he would warn his
co-conspirators and attempt to divert any potential
September 23, Martínez-Mercado called
López-Torres to tell him that they would execute the
plan that evening. López-Torres relayed the
information to Ramos-Figueroa. While López-Torres was
on duty, he met up with Martínez-Mercado at around
7:00 p.m. in the parking lot of a local supermarket.
Ramos-Figueroa joined them shortly thereafter.
Martínez-Mercado was driving a mini-van, and both
López-Torres and Ramos-Figueroa testified that they
could see the silhouettes of at least two other people in the
back of the van.
a signal from Martínez-Mercado, López-Torres
and Ramos-Figueroa drove out of the parking lot in
López-Torres's patrol car and trailed the van to
the PlayaMar condominium complex. López-Torres parked
at the end of the street, while the van remained in front of
the building. They watched as two or three people jumped out
of the van and entered the complex. López-Torres and
Ramos-Figueroa kept their eyes on the van and listened to the
police radio. After they saw the van's interior lights
turn on, they left the area.
López-Torres and Martínez-Mercado reconvened as
planned, Martínez-Mercado handed López-Torres
about $3, 000 to split with Ramos-Figueroa.
Martínez-Mercado explained that "there wasn't
that much" in the apartment, just "about $6, 000 to
$7, 000 and some jewelry."
spoke with Martínez-Mercado over the phone several
times over the next week. During one of those conversations,
López-Torres informed Martínez-Mercado that a
complaint had been filed the day after the break-in. The
morning of September 24, another officer, Josue Cosme-Rosa,
took photographs of the "ransacked" PlayaMar
apartment and concluded that the balcony door had likely been
district court allowed the government to introduce so-called
"bad acts" evidence under Federal Rule of Evidence
404(b), over objection, through the testimony of two other
former PRPD officers, Rafael Ramos-Veléz and Miguel
Pagán. The government also presented telephone records
and historical cell-site data. This evidence confirmed that
Martínez-Mercado, Fernández, and
López-Torres had been in contact by phone on September
15 and showed nineteen calls between Martínez-Mercado
and López-Torres on the night of the Carolina job. The
cell-site data also showed that Martínez-Mercado's
and López-Torres's cell phones were in the area of
the PlayaMar that night.
the end of the case against him, Martínez-Mercado
alleged that the government delayed the production of an FBI
report, which detailed an interview with another PRPD
officer, Yaritza Cruz-Sánchez, who had investigated
the PlayaMar complaint. The district court determined that,
although the report was not disclosed until the day before
trial, it was not exculpatory or impeaching under Brady
v. Maryland, 373 U.S. 83 (1963). The court did not
permit the introduction of the report and also denied
Martínez-Mercado's request to issue a
material-witness warrant for Cruz-Sánchez.
takes issue with two further district court actions during
the presentation of his case. First, the district court
excluded the testimony of ATF Agents Jean Carlos Rivera and
Julio Torres about an ATF investigation that
Martínez-Mercado contends would have accounted for his
communications with Fernández and López-Torres.
After hearing the agents' testimony outside the presence
of the jury, the court concluded that they did not have any
relevant information. Second, although the district court
allowed Fernández to testify, the court advised him of
his Fifth Amendment rights three times, and Fernández
invoked his right against self-incrimination in response to
questioning on cross-examination.
February 26, 2016, after a five-day trial, the jury found
Martínez-Mercado guilty of conspiring to violate civil
rights. The district court denied his renewed motion for
acquittal under Federal Rule of Criminal Procedure 29 and
subsequently denied each of his new-trial motions pursuant to
Federal Rule of Criminal Procedure 33.
appeals the denial of his motions for judgment of acquittal
based on the insufficiency of the evidence. See Fed.
R. Crim. P. 29(a). We review a district court's denial of
a Rule 29 motion de novo, asking "whether, after
assaying all the evidence in the light most amiable to the
government, and taking all reasonable inferences in its
favor, a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the essential
elements of the crime." United ...