230 F.3d 431 (1st Cir.

2000)

UNITED STATES OF AMERICA, APPELLEE,

V.
HANSON WILSON MILLAN, DEFENDANT, APPELLANT.
No. 99-1805

United States Court of Appeals For the First Circuit

Heard September 15, 2000.
Decided October 27, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO [Hon. Salvator E. Casellas, U.S. District
Judge][Copyrighted Material Omitted]
Rafael F. Castro Lang, by Appointment of the Court, for appellant.
Antonio R. Bazan, Assistant U.S. Attorney, with whom Guillermo Gil,
United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S. Attorney,
and Camille Velez-Rive, Assistant U.S. Attorney, were on brief for the
appellee.
Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin,
Circuit Judge.
Coffin, Senior Circuit Judge.

Defendant-appellant Hanson Wilson Millan appeals from convictions for

carjacking that resulted in death, in violation of 18 U.S.C. 2119(3), and for
using a firearm during the commission of the offense, in violation of 18 U.S.C.
924(c). Appellant claims error in several evidentiary rulings at trial and
contends that the prosecutor made improper remarks during his closing
argument. We affirm.
I. BACKGROUND

The facts as the jury could have found them are as follows. In the wee hours of
April 5, 1996, appellant was riding in a red Mitsubishi driven by Jose Otero

Mendez in Carolina, Puerto Rico. Also along for the ride were Javier
Betancourt, his girlfriend, Jomary Aleman Gonzalez, and Geovani Castro
Ayala. When a white Nissan with alloy wheels passed by, Otero followed it,
intending to swipe the coveted wheels. The Nissan was driven by Juan Manuel
Gonzalez Encarnacion ("Gonzalez"), an off-duty police officer who was on his
way to his girlfriend's house.
3

As Gonzalez parked on the street in front of the house, Otero pulled up

alongside. Appellant and Betancourt, each armed with handguns, got out and
approached Gonzalez' car. Shots were fired. Both Gonzalez and Betancourt
were hit and died as a result of their injuries.

At trial it was unclear who fired first. There was testimony of an initial
exchange of bullets between Betancourt and Gonzalez through the driver's side
window of Gonzalez' car. Appellant testified that upon hearing gunshots, he
fired through the rear window at Gonzalez, who, according to autopsy reports,
died instantly.

Betancourt, who had been shot in the abdomen, was assisted into Otero's car
and dropped off at the Carolina hospital along with Aleman and Castro. At the
hospital, Aleman and Castro, both juveniles, lied to authorities about how
Betancourt was shot, in an attempt to cover up the crime. After Betancourt
died, Aleman and Castro told police what actually happened, and both
subsequently pleaded guilty to their accessory roles in the offense and agreed to
cooperate and testify. Appellant and Otero were indicted together, but their
cases were severed before trial. Appellant was found guilty and sentenced to
imprisonment for life. Pertinent portions of appellant's trial will be recounted in
context as part of our analysis of his arguments on appeal.

Appellant asserts three claims of error. First, he argues that the court erred in
refusing to admit a portion of the government's written version of facts that was
attached to Aleman's plea agreement, which, he contends, would have shown
that Gonzalez fired first. Second, appellant claims that the court erred in
refusing to permit hearsay testimony about illegal firearms dealing involving
Gonzalez, which would have helped refute the government's theory that the
shooting occurred during a carjacking. Third, appellant takes exception to the
prosecutor's remarks during closing argument. We address each of these
arguments in turn.
II. ANALYSIS

A. Refusal to Admit Excerpt from Version of Facts

Appended to Aleman's plea agreement was a three-page statement of facts

drafted by the government and signed by the prosecutor and Aleman. During
Aleman's direct testimony at trial, the government sought to introduce the plea
agreement along with the version of facts, but defense counsel objected. At a
bench conference, counsel stated that he had no objection to the plea
agreement, only to the version of facts. The prosecutor agreed to excise the
version of facts and the plea agreement was admitted by itself.

At the close of the defendant's case, his attorney attempted to reintroduce a

portion of the version of facts he had successfully barred earlier. He argued that
this part of the version of facts clarified who fired first, an issue disputed at
trial. After a lengthy sidebar conference, the court was persuaded to allow
counsel to introduce the version of facts notwithstanding his earlier objection,
but ruled that the whole version had to come in, not just the excerpt favorable to
his position. In its consideration of the issue, the district court apparently
viewed the government's four-paragraph narrative as an integrated whole, the
piecemeal introduction of which would have unfairly distorted the
government's version of events. Counsel declined the invitation to admit the
entire version and now claims error in that ruling.

10

Under the doctrine of completeness codified in Federal Rule of Evidence 1061 ,

a party wishing to introduce only a portion of a recorded statement may be
precluded from doing so where partial disclosure out of context would result in
unfairness to the other party. See United States v. Awon, 135 F.3d 96, 101 (1st
Cir. 1998) ("The doctrine of completeness . . . operates to ensure fairness where
a misunderstanding or distortion created by the other party can only be averted
by the introduction of the full text of the out-of-court statement."). The rule
permits "a party against whom a fragmentary statement is introduced [to]
demand that the rest of the statement (or so much thereof as is appropriate) be
admitted into evidence in order to place the excerpt in context." United States
v. Houlihan, 92 F.3d 1271, 1283 (1st Cir. 1996). We review Rule 106
completeness determinations for abuse of discretion. See United States v.
Thuna, 786 F.2d 437, 441 n.7 (1st Cir. 1986) ("application of rule 106 is left to
the sound discretion of the district court"); United States v. Conley, 186 F.3d 7,
22 (1st Cir. 1999) ("In making determinations as to the completeness of
proffered statements, the district court's judgment is entitled to great respect.");
accord Houlihan, 92 F.3d at 1283.

11

After reviewing the version of facts, we find no abuse of discretion in the

court's refusal to admit less than the whole document. "[T]he threshold
question under Rule 106 is always one of defining the entirety: that is, if Rule
106 applies, what is it that must be complete?" United States v. Boylan, 898
F.2d 230, 256 (1st Cir. 1990). Here, the entirety is easily defined as the
government's version of facts. That document bore its own caption and was
signed and dated separately from the plea agreement to which it was appended.
Early on in the trial, the parties implicitly agreed that the version stood on its
own when it was excised from the plea agreement introduced into evidence by
the government.
12

Having determined the version of facts document to be "a reasonable unit of

wholeness," we next consider whether the excerpt would "neglect[] some
revealing context of the whole." Id. at 257. Although appellant did not indicate
on the record which portion he wanted admitted, he points us in his brief to
three sentences that, he argues, would have been helpful to his case:

13

As Javier Betancourt approached the driver's side of the automobile that they
intended to carjack, its driver, Juan M. Gonzalez Encarnacion, an off duty state
policeman, fired his revolver at him. Betancourt was hit in the stomach area but
still managed to fire several shots that hit Gonzalez Encarnacion. Meanwhile,
Hanson Wilson Millan fired several shots at Gonzalez through the rear window
of the car.

14

This excerpt, plucked mid-paragraph, tells only part of the story portrayed in
the government's version of facts. That document also describes, in the
government's voice, events leading up to the shooting, including a passage just
prior to the excerpt stating that appellant and Betancourt "dismounted the car
with firearms in their hands." That appellant approached Gonzalez' car with
revolver at the ready bears on the possibility that appellant fired his shots
before, or at the same time as, Gonzalez did. Shorn from the context of the
entire narrative, the excerpt may have distorted the jury's perception of the
government's written version of events. Requiring admission of the entire
document was therefore within the district court's discretion.

15

Furthermore, any error in refusing to admit the excerpt was harmless. Even if
the excerpt had been admitted, it would not have been particularly helpful to
appellant's case. Contrary to appellant's assertion, the excerpt does not
unequivocally settle the issue of who shot first. Though the narrative order of
the quoted language may suggest that Gonzalez fired first, the statement, "
[m]eanwhile, [appellant] fired several shots at Gonzalez," could mean that
appellant was the first to fire.

16

The excerpt was also cumulative of appellant's trial testimony. On the stand,
appellant admitted to firing several times into the back of Gonzalez' car after
seeing Betancourt get hit. He testified that he did not start shooting until after
Betancourt had started and that Betancourt returned fire only after being shot.
Although the selected excerpt may have on balance corroborated appellant's
testimony, excluding it did not preclude appellant from presenting his theory of
the case.

17

Nevertheless, even if the jury had been permitted to consider the excerpt from
the government's version of facts and, in combination with appellant's
testimony, drew the inference that appellant did not initiate gunfire, it is unclear
how that fact might have tended to exonerate him. Establishing that Gonzalez
fired first, or even that appellant did not fire first, would have done little to
undermine the mens rea element of the offense. The carjacking statute attaches
criminal liability to anyone who, with the intent to cause death or serious bodily
harm, attempts to take a motor vehicle by force or intimidation. 18 U.S.C.
2119 (1994).2 Violations of the carjacking statute do not turn on who initiated
the altercation. See Holloway v. United States, 526 U.S. 1, 11-12 (1999)
(holding that mens rea element of 2119 is satisfied by conditional intent to
cause death or serious bodily harm if necessary to hijack the car); see also
United States v. Gandia-Maysonet, 227 F.3d 1, 4(1st Cir. 2000).

18

The district court determined that fairness to the government required the
admission of the whole version of facts. On this record, we are not prepared to
hold that determination a harmful abuse of discretion.

19

B. Refusal to Admit Testimony of Illegal Firearms Dealing

20

Appellant's second claim of error is that the court wrongfully refused to admit
testimony of illegal firearms dealing involving Betancourt and Gonzalez. At
trial, appellant attempted to show that the shooting did not occur during a
carjacking, but was motivated by a dispute over money owed by Gonzalez to
Betancourt as part of their gun dealing. Appellant's attempts to present this
alternate theory to the jury were thwarted by two of the court's evidentiary
rulings. The first occurred when, during the defendant's direct testimony, a
hearsay objection was sustained that prevented appellant from testifying to the
substance of a conversation he heard between Betancourt and Gonzalez about
trading illicit firearms. The second ruling barred Otero from testifying that he
fled from police because he feared reprisal for knowing that Gonzalez -- a
police officer -- was engaged in illicit activity. We review these evidentiary
rulings for abuse of discretion. See United States v. Mojica-Baez, 229 F.3d

292c 300-01 (1st Cir. 2000).

21

1. Appellant's Proffered Testimony Was Inadmissible.

22

Appellant testified on direct examination that he first met Gonzalez in midMarch 1996 when he was driving with Betancourt and they pulled up next to
Gonzalez' car in the parking lot of a Burger King. As appellant began to relate
what was said between Betancourt and Gonzalez, the government objected
strenuously, arguing that the admission of the hearsay statements would be
particularly unfair because both declarants were dead.

23

At sidebar, counsel proffered that the conversation was about weapons, but that
he was not offering it for the truth of the matter asserted. The testimony was
admissible, he argued, to show defendant's awareness of firearms dealing. He
apparently wanted to bolster appellant's later testimony that his understanding
of the purpose of the fatal confrontation with Gonzalez was to collect a debt.
However, there was no proffer that the excluded conversation shed any light on
the financial dealings of Betancourt and Gonzalez.

24

At the conclusion of the colloquy on this point, the court gave counsel the
opportunity to identify another basis for admission, which we discuss below.
Assuming the earlier non-hearsay argument was preserved, we have no
difficulty in holding harmless any error in refusing to admit the conversation.
Appellant was permitted to testify later as to his state of mind, and the proffered
conversation lacking specifics would not have added significantly to appellant's
case.

25

Once it became clear that appellant was not going to prevail on his non-hearsay
argument, defense counsel proposed to have the firearms statements admitted
under Federal Rule of Evidence 804(b)(3)3 , which permits the introduction of
hearsay testimony where a declarant unavailable to testify had exposed himself
to criminal liability in the out-of-court statement. See Williamson v. United
States, 512 U.S. 594, 599 (1994) ("Rule 804(b)(3) is founded on the
commonsense notion that reasonable people, even reasonable people who are
not especially honest, tend not to make self-inculpatory statements unless they
believe them to be true."). Whenever offered to exculpate the accused, such
statements must be corroborated to "clearly indicate the[ir] trustworthiness."
Fed. R. Evid. 804(b)(3); see also United States v. Mackey, 117 F.3d 24, 29 (1st
Cir. 1997) ("the requirement for corroboration is not unrealistically severe but
does go beyond minimal corroboration") (internal quotation marks omitted).
District courts have "'a substantial degree of discretion'" in determining whether

a hearsay statement against penal interest offered to acquit the accused has been
sufficiently corroborated to be admissible. Mackey, 117 F.3d at 29 (quoting
United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976)).
26

The district court apparently assumed without deciding that the statements of
Betancourt and Gonzalez were against their respective penal interests, but ruled
appellant's testimony about the conversation inadmissible because its
trustworthiness had not been sufficiently corroborated. We find no error with
this ruling.

27

The only corroborative evidence offered was the testimony of appellant's

cousins, Margarita and Jessica Esquilin, who reported an occasion, prior to the
carjacking, when they observed appellant and Betancourt follow a white car
after being paged and then return irked because they had been shortchanged
money. Appellant argues that the court should have inferred that it was
Gonzalez who paged them, that the white car was Gonzalez' and that their
vexation over the money had to do with illegal firearms. We agree with the
district court that these inferences were too remote to corroborate Gonzalez'
hearsay statement. The Esquilins' testimony lacks sufficient detail to lend much
assistance to the reliability of the Gonzalez-Betancourt conversation. Because
appellant sought to testify to the substance of that conversation and because
that substance could not be adequately corroborated, appellant's proffered
testimony about illegal firearms dealing was properly excluded as inadmissible
hearsay.

28

2. Otero's Testimony Was Also Inadmissible Hearsay.

29

Before appellant took the stand, his attorney tried to elicit the same information
about Gonzalez' involvement in firearms dealing from Otero, the co-defendant
whose case was severed before trial. On redirect examination, Otero testified
that, after driving the wounded Betancourt to the hospital and dropping off the
other passengers, he proceeded to a friend's house, where the police caught up
with him. Observing the officers checking out his vehicle, Otero fled on foot.
Counsel asked Otero whether, at the time the police were looking at his car, he
knew Gonzalez was involved in anything illegal. The government objected,
claiming the question was beyond the scope of its cross examination. The court
sustained the objection. 4

30

At sidebar, counsel argued for admitting the statement to show Otero's state of
mind: he fled fearing retribution from the police because he was aware
Gonzalez was a crooked cop. Otero had testified earlier that he knew of

Gonzalez from Betancourt prior to the carjacking, but had no personal

knowledge of a debt owed by Gonzalez purportedly due to dealings in illegal
firearms. The court sustained the objection, ruling that the question called for
inadmissible hearsay. This ruling seems entirely proper. The fact of any illicit
activity on the part of Gonzalez could not be proven through the back door, so
to speak, by the state of Otero's mind, which was irrelevant to appellant's case.
C. Prosecutor's Closing
31

Appellant's third claim of error is that, during his closing argument, the
prosecutor improperly vouched for the credibility of a government witness and
made derogatory remarks about defense witnesses. Because none of the
offensive statements were objected to, our review is for plain error. Fed. R.
Crim. P. 52(b); United States v. Verrecchia, 196 F.3d 294, 302 (1st Cir. 1999).5

32

During his closing argument, the prosecutor referred to Aleman's plea

agreement, in which she had pledged to testify honestly, suggesting that
Aleman had no incentive to lie and had indeed testified truthfully.6 Because the
verdict in this case turned, in part, on Aleman's credibility, appellant argues that
the prosecution's assurance about her testimony was plain error.

33

Although a "prosecutor may not place the prestige of the government behind a
witness by making personal assurances about the witness's credibility," United
States v. Bey, 188 F.3d 1, 7 (1st Cir. 1999), "an argument that does no more
than assert reasons why a witness ought to be accepted as truthful by the jury is
not improper witness vouching." United States v. Rodriguez, 215 F.3d 110, 123
(1st Cir. 2000). Here, the prosecutor simply pointed out a fact in evidence --that
Aleman's plea agreement required her to testify candidly -- and asserted that she
had upheld her end of the bargain by doing so. This was not error. See Bey, 188
F.3d at 7 ("[A] prosecutor properly may admit a witness's plea agreement into
evidence, discuss the details of the plea during closing arguments, and
comment upon a witness's incentive to testify truthfully.") (citing United States
v. Dockray, 943 F.2d 152, 156 (1st Cir. 1991)).

34

Appellant enumerates several derogatory comments as improperly discrediting

himself and other defense witnesses. These remarks generally suggest that
appellant concocted the story about Gonzalez' involvement in selling illegal
weapons to paint the shooting as precipitated by a dispute over a debt, not a
carjacking. For example, in reference to appellant's testimony, the prosecutor
told the jury: "you do not have to believe that which nobody else will believe";
"[y]ou have a right not to have anyone insult your intelligence"; "you cannot

cover the sky with your hands . . . . [Appellant] has had approximately two and
a half years [in pretrial detention] to come up with this story." Referring to
Gonzalez and Betancourt, the prosecutor remarked, "Dead men don't come to
testify in court. So now it's very easy to try to put words in the mouths of dead
people and build a story around these two individuals." And in reference to
appellant's cousins, he said, "the testimony of both of the Esquilin sisters are
[sic] part of a fabrication." We have considered each of these remarks and find
no one particularly egregious; nor do they rise to the level of plain error in the
aggregate because they did not "affect[] the outcome of the proceedings."
United States v. Hughes, 211 F.3d 676, 684 (1st Cir. 2000) (citing United
States v. Olano, 507 U.S. 725, 734 (1993)).
35

For the foregoing reasons, the conviction is affirmed.

Notes:
1

"When a writing or recorded statement or part thereof is introduced by a party,

an adverse party may require the introduction at that time of any other part or
any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it." Fed. R. Evid. 106.

Section 2119 states, in pertinent part:

Whoever, with the intent to cause death or serious bodily harm [,] takes a motor
vehicle that has been transported, shipped, or received in interstate or foreign
commerce from the person or presence of another by force and violence or by
intimidation, or attempts to do so, shall . . .
(3) if death results, be fined under this title or imprisoned for any number of
years up to life, or both, or sentenced to death.

The rule defines "statement against interest" in part as "[a] statement which . . .
at the time of its making . . . so far tended to subject the declarant to civil or
criminal liability . . . that a reasonable person in the declarant's position would
not have made the statement unless believing it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the accused
is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement." Fed. R. Evid. 804(b)(3).

The Rules of Evidence do not explicitly address the scope of redirect, but state
only that cross examination should be limited to the scope of direct. See Fed. R.
Evid. 611(b). We have recognized the Eighth Circuit's rule granting trial courts

discretion to limit redirect examination to the scope of cross. See United States
v. Catano, 65 F.3d 219, 226 (1st Cir. 1995) (citing United States v. Braidlow,
806 F.2d 781, 783 (8th Cir. 1986)). We need not further address that issue
today, however, because the district court ruled in the alternative that the
proffered statement was hearsay, and we deem this alternative ruling correct.
5

The one comment to which an objection was made -- "the penalties at the
federal level are a lot stiffer than at the local level" -- was ameliorated by a
limiting instruction, which rendered any error harmless. See Fed. R. Crim. P.
52(a).

The specific passage to which appellant takes exception reads: "I submit to you
she is testifying, she has a plea agreement, she has kept that plea agreement. . . .
She has a plea agreement to testify truthfully. . . . I submit to you, ladies and
gentlemen of the jury, you can consider the fact, consider the fact that she has
indeed testified truthfully."