Professional Documents
Culture Documents
No. 94-1781
Appellee,
v.
HERMINIO PEREZ-PEREZ,
Defendant, Appellant.
____________________
____________________
Before
____________________
Assistant
Department
of
Attorney General,
Justice,
with
whom
Deval
_______
Lisa
____
____________________
December 26, 1995
____________________
____________________
BOUDIN,
Circuit Judge.
______________
Herminio
Perez
Perez
was
formerly a
In
an
on a motorcycle
was
a halt.
Perez
In
deprivation
U.S.C.
crime of
1993,
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,
1.
In the district
conceded that
permitted
maintained
that
doctrine of
Puerto
Rico
sovereign distinct
from the
judge
motion,
circuit.
jeopardy grounds.
Although he
under the
denied
to dismiss the
the
"dual sovereignty,"
should not
be
considered
federal government.
adhering to
Perez
precedent
The trial
in
this
-2-2-
not
violate the
double
by the
same sovereign
jeopardy principles
if the
second
(1932),
do
Under
299, 304
"each [offense]
requires proof
of an additional
long as
fact which
the other
single
does not".
Even
were we
The
attempted murder
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.
510 (1980).
charge in
Puerto
with the
3062, 4001
under
Conversely,
this case
the federal
required proof of
civil
elements not
that
under color of
law.
18 U.S.C.
242.
The only
other are
concealment
two charges
of evidence
violation under
discussed.
under
The
local law
-3-3-
resembled each
remaining charges--
and the
firearms
charge as each
civil rights
other or
charge.
as either the
attempted murder
In sum, Blockburger
___________
disposes of
or
the
same even
2.
barred
because it
required relitigation
of factual
to
finding
unreasonable
rights charge.
that
he
force being
issues
Perez
had not
used
the premise
unreasonable
of the
force,
federal civil
the
litigation.
showing
United States v.
_____________
the prior
F.2d 39,
prosecutors,
possibly because
governments,
an argument this
Id.
___
he
thinks
that his
"single
two
-4-4-
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
A defendant can be
if he
show
records of
from
the court
excessive
force issue, or
the
first trial
United States
_____________
by
instructing the
critical in the
here.
no such showing
v. Aquilar-Aranceta, 957
________________
3.
that the
F.2d 18,
jury, prior to
closing argument
by the
trial judge
closing,
23
The
Perez did not raise this issue in the district court when the
discrepancy could
easily have
been corrected, so
we review
The
could
challenged
remark was
innocuous in
is alleged
or
apparent
from the
-5-5-
isolation and
record.
No
such pattern
Indeed,
while
discussing
the
jury to "give
to the [prosecution
In the final
charge, the judge told the jury that he had no opinion in the
case
and
that
disregarded.
anything
suggesting
otherwise
should
be
challenged remark.
4.
Neftalie Hernandez
government witness,
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
for
his testimony
in Perez'
previous trial.
The defense
The district
referred to
evidence of bad
attack the
credibility of a witness.
the rule
witness
may
constitute
to support or
character
_________
evidence
acts of a
bearing
on
not evidence of
enough force to
justify
-6-6-
the
detour
of extrinsic
proof.
Thus, Rule
608(b) barred
as it was offered to
show that
Of
course,
Hernandez' testimony
would
not only
have
suggested that
Nieves was
have contradicted
of bad
character but
Impeachment
by
contradiction
_____________
is
impeachment
but by
common-law principles.
recognized
608(b), 28 C.
would also
mode
of
Wright & V.
6118, at 103
(1993),
996
Ct.
409
again
(1993).
But,
for
contradiction
contradicted
Here, Nieves'
where
largely
for
reasons
of
the
prior
testimony
the case at
hand.
being
Id.
___
material to Perez'
guilt or innocence.
Finally, Perez'
brief says
that
Hernandez would
also
Reputation
Fed. R.
evidence of
this kind
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.
-7-7-
advise
the
testimony,
trial
court
of
this
facet
of
the
proposed
See Fed. R.
___
Evid. 103(a)(2).
5.
declining
to adjust
acceptance of
Since
his
sentence downward
two levels
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.
for his
wrongdoing and
although
the
probation
accepted
remorse
responsibility for
officer ultimately
concluded
same,"
that
he
lacked
criminal intent
at the
Thus,
time
of the
crimes and
there is no indication
that
further
3E1.1(a).
Perez'
reasons
U.S.S.G.
See United
___ ______
Affirmed.
________
-8-8-