USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1781

UNITED STATES OF AMERICA,

Appellee,

v.

HERMINIO PEREZ-PEREZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

___________________

____________________

Before

Selya and Boudin, Circuit Judges,

______________

and Saris,* District Judge.

______________

____________________

Harry Anduze Montano for appellant.

____________________
Louis Peraertz,
_______________
Patrick,
_______

Assistant

Department

of

Attorney General,

Justice,

with

whom

Deval
_______

Dennis J. Dimsey and

_________________

Lisa
____

Stark, Department of Justice, were on brief for the United States.

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____________________
December 26, 1995

____________________

____________________

*Of the District of Massachusetts, sitting by designation.

BOUDIN,

Circuit Judge.
______________

Herminio

Perez

Perez

was

formerly a

In

sergeant with the Puerto

Rico Police Department.

1989, he was charged under Puerto Rico law with attempted

murder and concealing evidence.

The charges stemmed from

an

incident in which Perez allegedly shot and wounded two riders

on a motorcycle

was

while seeking to bring it to

a halt.

Perez

tried in Puerto Rico Superior Court and acquitted by the

jury on both counts.

In

1992, Perez was indicted by a federal grand jury, in

connection with the same

deprivation

U.S.C.

of rights under color of law, in violation of 18

242, and using a firearm during the

crime of

1993,

shooting incident, and charged with

violence, in violation of

a jury

convicted Perez

18 U.S.C.

on both

commission of a

924(c).

charges, and

In

he was

sentenced

to

106 months'

imprisonment.

He now

appeals,

raising a variety of different claims of error.

1.

In the district

court, Perez moved

federal convictions on double

conceded that

permitted

maintained

that

doctrine of

Puerto

Rico

sovereign distinct

from the

judge

motion,

circuit.

jeopardy grounds.

Although he

successive state and federal prosecutions were

under the

denied

to dismiss the

the

"dual sovereignty,"

should not

be

considered

federal government.

adhering to

Perez

precedent

The trial

in

this

United States v. Lopez Andino, 831 F.2d 1164, 1167_____________

____________

68 (1st Cir. 1987).

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Successive prosecutions even

not

violate the

double

by the

same sovereign

jeopardy principles

if the

second

prosecution involved substantively different offenses.

the test of Blockburger

___________

(1932),

v. United States, 284 U.S.

_____________

do

Under

299, 304

readopted in United States v. Dixon, 113 S. Ct. 2849

_____________
_____

(1993), offenses are "different" for this purpose so

"each [offense]

requires proof

of an additional

long as

fact which

the other

single

does not".

Even

were we

sovereign, Perez' claim

here concerned with

would fail under Blockburger

___________

because the federal offenses and the

Puerto Rico offenses do

have different elements.

The

attempted murder

unlike the federal civil

defendant

foreseeable

tit.

33

110 P.R.

rights

acted

charge

consequence of

Dec.

intent

to

causing death.

Rico

law,

kill

or with

P.R.

the

Laws Ann.

(1991); People v. Betancourt Asencio,

______
__________________

510 (1980).

charge in

Puerto

rights offense, requires proof that

with the

3062, 4001

under

Conversely,

this case

the federal

required proof of

civil

elements not

required by the attempted

murder charge, including a showing

that

under color of

the defendant acted

law.

18 U.S.C.

242.

The only

other are

concealment

two charges

the two just

of evidence

violation under

that even vaguely

discussed.

under

The

local law

federal law--are not even

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resembled each

remaining charges--

and the

firearms

arguably the same

charge as each

civil rights

other or

charge.

as either the

attempted murder

In sum, Blockburger
___________

double jeopardy claim, so

disposes of

the result would be the

or

the

same even

if Lopez Andino had never been decided.

____________

2.

As a fall-back position, Perez argues that under the

doctrine of collateral estoppel,

barred

because it

the federal prosecution was

required relitigation

of factual

resolved in Perez' favor during the Puerto Rico trial.

suggests that his acquittal

to

finding

unreasonable

rights charge.

that

he

force being

issues

Perez

on murder charges was equivalent

had not

used

the premise

unreasonable

of the

force,

federal civil

United States v. McQueeney, 674 F.2d 109, 113

_____________
_________

(1st Cir. 1982).

Although the doctrine of

collateral estoppel applies in

criminal cases, Ashe v. Swenson, 397 U.S. 436, 443-44 (1970),

____
_______

the

party to be precluded must have

privity with, the party

litigation.

showing

who lost on that issue in

United States v.
_____________

42-44 (1st Cir. 1987).

been the same as, or in

Bonilla Romero, 836

______________

the prior

F.2d 39,

Perez makes no effort to adduce facts

privity in this case between federal and Puerto Rico

prosecutors,

possibly because

sovereign" argument establishes

governments,

an argument this

in Bonilla Romero itself.

______________

Id.
___

he

thinks

that his

"single

an identity between the

two

court has previously rejected

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But all this

even

has

makes no

assuming identity or

not shown

that any

difference to

privity among

fact previously

the outcome,

for

prosecutors, Perez

determined in

his

favor in the local trial was relitigated in the federal case.

A defendant can be

acquitted of attempted murder even

if he

used excessive force.

To be sure, Perez could have sought to

show

records of

from

the court

excessive

force issue, or

federal trial, was actually

the

first trial

some other issue

United States
_____________

(1st Cir. 1992).

by

instructing the

critical in the

tried and necessarily decided in

his favor in the first case, but he has made

here.

no such showing

v. Aquilar-Aranceta, 957
________________

3.

that the

F.2d 18,

Perez says that the trial judge erred

jury, prior to

closing argument

by the

government, to "give close attention" to the prosecutor.

trial judge

closing,

23

made no similar remark

and Perez asserts

The

before defense counsel's

that this discrepancy improperly

"carried the weight of the judge to one side of the balance."

Perez did not raise this issue in the district court when the

discrepancy could

easily have

only for plain error.

been corrected, so

we review

United States v. Olivier-Diaz, 13 F.3d

_____________
____________

1, 5 (1st Cir. 1993).

The

could

challenged

remark was

innocuous in

not have prejudiced the jury

unless it were part of a

pattern of remarks favoring the government.

is alleged

or

apparent

from the

-5-5-

isolation and

record.

No

such pattern

Indeed,

while

discussing

the

closing arguments generally, the judge admonished

jury to "give

your close attention

to the [prosecution

and defense] attorneys while they address you."

In the final

charge, the judge told the jury that he had no opinion in the

case

and

that

disregarded.

anything

suggesting

We see no error, let

otherwise

should

be

alone plain error, in the

challenged remark.

4.

Perez next asserts that the district court erred in

not permitting the defense to offer the testimony of Sergeant

Neftalie Hernandez

government witness,

Santiago to impeach the

officer Ricardo

Nieves

credibility of a

Lopez.

During

cross-examination,

Nieves

conceded

officers,

including Hernandez,

incidents

of

misconduct.

that

had accused

Nieves

fellow

him of

maintained

police

various

that

these

allegations were baseless and had been made only to retaliate

for

his testimony

in Perez'

called officer Hernandez to

previous trial.

The defense

elicit testimony that Nieves had

engaged in the alleged misconduct.

The district

referred to

Fed. R. Evid. 608(b),

evidence of bad

attack the

court in excluding the Hernandez testimony

which precludes extrinsic

acts (other than convictions)

credibility of a witness.

the rule

is that while certain

witness

may

constitute

to support or

The notion underlying

prior good or bad

character
_________

evidence

acts of a

bearing

on

veracity, they are

not evidence of

enough force to

justify

-6-6-

the

detour

of extrinsic

proof.

Hernandez' testimony insofar

Thus, Rule

608(b) barred

as it was offered to

show that

Nieves had a propensity to lie.

Of

course,

Hernandez' testimony

would

not only

have

suggested that

Nieves was

have contradicted

of bad

character but

Nieves' own denials on

Impeachment

by

contradiction
_____________

is

impeachment

not governed by Rule

but by

common-law principles.

the witness stand.

recognized

608(b), 28 C.

Gold, Federal Practice and Procedure

_______________________________

would also

mode

of

Wright & V.

6118, at 103

(1993),

United States v. Innamorati,

______________
__________

996

F.2d 456, 479-80 (1st

Cir. 1993), cert. denied, 114 S.

_____________

Ct.

409

again

(1993).

But,

efficiency, extrinsic evidence to

for

contradiction

contradicted

Here, Nieves'

where

largely

for

reasons

of

impeach is only admissible

the

was itself material to

prior

testimony

the case at

alleged misconduct was not

hand.

being

Id.
___

material to Perez'

guilt or innocence.

Finally, Perez'

brief says

that

Hernandez would

also

have testified that Nieves' reputation for veracity was poor.

__________

Reputation

Fed. R.

evidence of

this kind

Evid. 608(a), although

limited--precisely

untruthfulness

Weinstein, M.

cannot

because

be

Berger & J.

is sometimes

its weight is

specific

elicited

in

admissible,

usually quite

examples

support.

of

J.

McLaughlin, Weinstein's Evidence

_____________________

para. 608[3], at 608-28 (1995).

-7-7-

In all events, Perez did not

advise

the

testimony,

trial

court

of

this

facet

of

the

so the argument is effectively lost.

proposed

See Fed. R.
___

Evid. 103(a)(2).

5.

Finally, Perez claims that the trial court erred in

declining

to adjust

acceptance of

Since

his

sentence downward

two levels

responsibility, pursuant to U.S.S.G.

this claim

was not

review is limited to

made in

plain error.

the district

for

3E1.1.

court, our

Olivier-Diaz, 13
____________

F.3d at

5.

In support of his claim, Perez offers only a statement in

the presentence report indicating that he "expressed

for his

wrongdoing and

although

the

probation

accepted

remorse

responsibility for

officer ultimately

concluded

same,"

that

Perez was not entitled to a downward adjustment.

In all events, the record

shows that Perez continued to

deny responsibility for his crime at sentencing, stating that

he

lacked

criminal intent

declaring his innocence.

at the

Thus,

time

of the

crimes and

there is no indication

that

the trial judge committed an error, let alone plain error, in

denying a downward adjustment.

further

3E1.1(a).

Perez'

suggestion that the district court had to recite its

reasons for denying the

reasons

U.S.S.G.

downward adjustment is mistaken; the

were and are apparent

from the record.

See United
___ ______

States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991).

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_______

Affirmed.
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