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United States v. Velazquez-Aponte

United States Court of Appeals, First Circuit

October 11, 2019

UNITED STATES OF AMERICA, Appellee,
v.
CARMELO ESTEBAN VELAZQUEZ-APONTE, Defendant, Appellant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

          Laura Maldonado-Rodríguez, for appellant.

          Julia 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.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE

         In June 2011, Defendant-Appellant Carmelo E. Velázquez-Aponte ("Velázquez") went on a three-day carjacking spree. After six years of litigation, Velázquez was ultimately convicted of eleven offenses arising from the spree, including four counts of carjacking -- one of which resulted in the death of a person -- four counts of possessing a firearm in furtherance of those carjackings, two counts of possessing a stolen firearm, and one count of possessing a firearm as a convicted felon. Velázquez now appeals his convictions on various grounds. After careful review, we affirm.

         I. Background[1]

         A. Factual Background

         1. First Carjacking: Mieses's Ford Pickup Truck

         On June 18, 2011, Velázquez shot and killed Richardson Mieses-Pimentel ("Mieses") at a Shell Gas Station in the municipality of Carolina, Puerto Rico, after which he took Mieses's gun and fled in Mieses's black Ford Explorer pickup truck. The next day, Officer Cynthia Rodríguez-Birriel ("Officer Rodríguez") went to the scene and viewed the gas station's security footage. Officer Rodríguez recognized the assailant in the video as Velázquez, whom she knew because she had previously investigated him regarding state criminal charges.

         2. Second Carjacking: Collazo's Mitsubishi Outlander

         On June 19, 2011, while officers were investigating the first carjacking, Velázquez arrived at another Shell Gas Station, this time in the area of Villa Prades in the municipality of San Juan. There, he spotted Jan Carlos Collazo ("Collazo") in the driver's seat of a "wine-colored Outlander" SUV while a friend was outside drying off the SUV's exterior.[2] Velázquez approached the vehicle and placed a black pistol on the back of Collazo's head while ordering him to step out. After taking Collazo's Samsung cellphone, Velázquez ordered Collazo to get back in and start the car. During this exchange, another friend of Collazo's, Zaimarie Font-Zayas ("Font"), approached the SUV unaware of the situation. After Collazo successfully started the car, Velázquez ordered him to get out once again. Before leaving the station with Collazo's vehicle and cellphone, Velázquez pointed his gun at Font and threatened to kill her if she said anything.

         3. Shootout with Officers Rivera and León

         The following day, June 20, 2011, Officer Daniel Joel Rivera-Martínez ("Officer Rivera") was patrolling the area of the Plaza Carolina shopping mall when a man told him that his nephew's "red Outlander" had been stolen. Officer Rivera misunderstood that the man's nephew had taken off with the Outlander. In a bizarre coincidence, an Outlander of that color drove by the two men seconds later, prompting Officer Rivera to signal the vehicle to stop. Believing he was about to encounter the man's nephew, Officer Rivera exited his patrol car and, while pointing his service firearm, instructed the Outlander's driver to get out of the vehicle. It turned out it was Velázquez driving Collazo's vehicle. From the driver's seat, Velázquez stuck his right arm out of the SUV and shot at Officer Rivera. Velázquez then exited the vehicle and, while shooting, ran towards Officer Rivera, who returned fire before losing consciousness due to bullet wounds. Once Officer Rivera regained consciousness, he noticed that his service revolver was missing.

         After hearing over the radio that a fellow officer had been injured at the Plaza Carolina shopping mall, Officer Edwin León-Jiménez ("Officer León") saw a Mitsubishi Outlander matching the description of the suspect vehicle announced over the radio pass him by, heading in the opposite direction. Officer León, who was on a motorcycle, followed Velázquez into a residential development where Velázquez stopped the SUV and began shooting at him. Officer León returned fire while he took cover behind his motorcycle.

         4. Third Carjacking: Officer Fargas's Patrol Car

         Officer Edgardo Fargas-Pérez ("Officer Fargas") arrived as backup in his patrol car, within which he had a navy-blue cap that said "POLICIA." As both officers took cover behind the patrol car, they noticed children playing outside in a nearby summer camp. The officers retreated from the patrol car and sought cover behind a truck to avoid Velázquez, who was walking toward them and shooting "without any care for [their] life or for his." Suddenly, the shots stopped and Officer Fargas saw Velázquez board the patrol car and flee the scene.

         5. Fourth Carjacking: Gómez's White SUV

         Velázquez then drove to a nearby Total Gas Station in Carolina where Johnny Gómez-Castro ("Gómez") was fixing the tire of his daughter's SUV, a white Mercury Mountaineer. Gómez testified that while he was opening the door to the SUV, a man ordered him to hand over the keys. Simultaneously, Gómez felt something "like metal" pressed against his left side. After that, Gómez heard the man say "[h]urry up, because I just injured a police officer." The man then took the car keys, ripped a gold chain bearing a cross pendant from Gómez's neck, and drove away in the Mountaineer.

         6. Velázquez's Arrest

         Responding to radio reports, Officer Joel Caldero-Ríos ("Officer Caldero") saw a Mercury Mountaineer and followed it on his motorcycle into a residential area. Cornered, on a dead-end street, Velázquez exited the vehicle with two firearms and began shooting at Officer Caldero, who returned fire but lost sight of Velázquez. Arriving soon afterwards, Officer Maribel Medina-Matos pursued Velázquez on foot and ultimately arrested him with the help of other officers. Officers recovered Collazo's cellphone from Velázquez's bag, along with Mieses's gun and Officer Rivera's firearm from Velázquez's person. Inside the Mercury Mountaineer, they found Officer Fargas's cap with the word "POLICIA" written on it and a gold chain.

         B. Procedural Background

         1. Indictment

         On July 6, 2011, a grand jury indicted Velázquez with eleven counts related to the crime spree.[3] Although the case was death penalty eligible, on April 24, 2014, the government informed the court that it would not seek the death penalty.[4]

         On December 9, 2014, defense counsel asked the court to transfer Velázquez to the Federal Medical Center ("FMC") in Butner, North Carolina, for a competency evaluation. The next day, the district court granted the request and ordered Velázquez's transfer for a forensic psychiatric or psychological examination to determine his competency to stand trial.[5]

         2. Forensic Mental Health Evaluation Report

         On November 20, 2015, the Warden of FMC Devens transmitted to the district court a comprehensive Forensic Mental Health Evaluation Report rendered by a board-certified forensic psychologist of that institution, finding that Velázquez was competent to stand trial and sane at the time of the offenses ("Forensic Report").[6] The Forensic Report described Velázquez's complex mental health history. According to the Forensic Report, the first available record of Velázquez's mental health problems consisted of a note from his "primary care physician at Clínica Borinquen in August 2007, indicating 'anxiety disorder' and a prescription for the anxiolytic/benzodiazepine medication alprazolam."

         The Forensic Report further documented that while under the custody of the Puerto Rico Department of Corrections for an unrelated weapons offense, from March 2008 until his release in June 2011, Velázquez was intermittently prescribed a variety of drugs: Alprazolam (anxiety), Zyprexa (antipsychotic), Depakote (mood stabilizer), Paxil (antidepressant), and Elavil (antidepressant). During this time, Velázquez was initially diagnosed only with Antisocial Personality Disorder. After he described his history of psychiatric treatment, a diagnosis of schizophrenia was added.

         The Forensic Report next recounted that once in federal custody and prior to his competency evaluation, [7] Velázquez injured himself on several occasions and was prescribed various medications based on his requests and self-reported symptoms, including Prozac (antidepressant), Zyprexa (antipsychotic), Risperdal (antipsychotic), Seroquel (antipsychotic), Klonopin (anxiety), Remeron (antidepressant), Wellbutrin (antidepressant), and Buspar (anxiety). At the time the report was written, November 9, 2015, Velázquez had been prescribed and was taking Wellbutrin, Buspar, Klonopin, Seroquel, and Remeron.

         The Forensic Report stressed that Velázquez's "mental health history [was] primarily based on his own self-report, as opposed to actual clinical observation of serious mental health symptoms." As an example, it noted that Velázquez's initial schizophrenia diagnosis in 2008 was "[b]ased only on [Velázquez's] self-report." The Forensic Report further noted that over time, Velázquez had described "a more severe history of mental health problems and treatment than is clinically documented." Additionally, it observed that Velázquez's reported mental health history "ha[d] often been inconsistent," and that Velázquez "ha[d] reported a number of atypical and unusual symptoms which are rare among genuinely mentally ill individuals."

         The Forensic Report concluded that Velázquez "d[id] not meet [the] criteria for Schizophrenia or any other Psychotic Disorder." It determined that Velázquez did have a longstanding personality disorder, [8] identifying it as Antisocial Personality Disorder with Borderline Features ("APD"). According to the Forensic Report, the "essential feature of [APD] is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15."

         As to Velázquez's competency to stand trial, the Forensic Report concluded that Velázquez did not "suffer from a mental illness which would render him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." The Forensic Report acknowledged that Velázquez could be "very difficult to work with," or could "refuse to work with his attorney" altogether, but stressed that "this is volitional behavior which is not motivated by a mental illness. The defendant is capable of working with his attorney and assisting in his defense if he chooses to do so."

         3. Evidentiary Hearing

         On April 18, 2016, the district court held an evidentiary hearing. The court interacted with Velázquez throughout the hearing and described him as "very articulate, very cool, very reflective, with excellent language and excellent expression." After considering Velázquez's demeanor and noting that the medical evaluations and forensic reports "clearly indicate that [Velázquez] has a capacity to both understand the trial and aid [his attorney] in understanding, in helping [Velázquez] to defend himself," the district court ruled that the case would proceed to trial.

         During the afternoon session of the evidentiary hearing, Velázquez's counsel expressed concern that Velázquez had not been receiving certain medications since his return to Puerto Rico from the mainland and that the dosage of one of his medications had been substantially decreased. Moreover, Velázquez's counsel explained that working with Velázquez was not easy, as he was at times uncooperative. Thus, he reiterated a request that a second attorney be appointed to assist in Velázquez's defense, which the district court granted.

         The next day, the district court issued an order to show cause to the warden of the Metropolitan Detention Center ("MDC") Guaynabo (the "Warden") as to why Velázquez "had not been receiving the medications or appropriate dosage of the medications prescribed."[9] The issue of Velázquez's ...


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