United States v. Irizarry-Sisco

87 F.4th 38

UNITED STATES of America, Appellee, v. Wally IRIZARRY-SISCO, Defendant, Appellant.

No. 19-1763

United States Court of Appeals, First Circuit

November 22, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Pedro A. Delgado Hernández, U.S. District Judge]

Michael C. Bourbeau, with whom Bourbeau & Bonilla, LLP was on brief, for appellant.

Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, were on brief, for appellee.

Before Barron, Chief Judge, Howard, Circuit Judge, and McAuliffe,^* District Judge.

HOWARD, Circuit Judge.

After a six-day trial, a jury found Wally Irizarry-Sisco guilty of one count of transportation of a minor with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). On appeal, Irizarry seeks to vacate the verdict against him, based upon the assertedly erroneous admission of hearsay testimony and improper opinion testimony. He also challenges the procedural and substantive reasonableness of his sentence. Concluding that the contested testimony was properly admitted and that the sentence was procedurally and substantively reasonable, we affirm.

I. BACKGROUND

Because we review the challenged evidentiary rulings using a balanced approach, "objectively viewing the evidence of record," we present the background facts in a similarly balanced manner. United States v. Velazquez-Fontanez, 6 F.4th 205, 212 (1st Cir. 2021) (alteration omitted) (quoting United States v. Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015)). Many of the background facts are drawn from the closed-circuit-television trial testimony of the alleged victim, to whom we refer as Minor Y.¹ We note when the facts are drawn from such testimony.

At the time of the alleged incidents, Irizarry was a close friend to Minor Y's father and to her family. Irizarry and Minor Y's father were initially engaged in a business relationship, but a friendship developed thereafter.

From 2012 onward, Irizarry would visit the family "[a]lmost every day" either at the family's home or at their farm, both of which were located in Ponce, Puerto Rico. Minor Y's parents trusted Irizarry to the point that they would allow him to bring Minor Y on trips alone with him "[a]ll the time," and Minor Y explained that she "loved him like a grandfather." Minor Y further testified that she had known Irizarry since she was seven years old.

In 2015, the relevant offense conduct began. Minor Y was eleven years old at the time, Irizarry nearly sixty. During that year, Minor Y would see Irizarry "daily" at her family's home. Irizarry would give Minor Y gifts, including an electronic tablet and a volleyball. Frequently, he would take her -- alone -- in his gray Suzuki Vitara truck to shop at nearby stores, including Kmart and Walmart, as well as to a local bakery to buy sweets for her. On one such trip, Irizarry insisted on buying underwear -- "panties," according to Minor Y -- for Minor Y after he overheard Minor Y telling her mother that she needed some and despite her mother's objection to his making such a purchase.

On a weekend in March, despite telling Minor Y that he would drive her to Walmart, Irizarry unexpectedly drove her to the El Eden motel in the Juana Díaz suburb of Ponce. Minor Y testified that, as they drove in, Irizarry told her, "Put your seat back so that they don't see you because you're a minor." After parking his car, Irizarry got out and paid someone for a motel room equipped with a pole.² As was the motel's practice, a motel employee recorded the license plate of the car, along with the car's time of entry and exit. The manager of the motel testified that the motel's records indicated that a vehicle bearing Irizarry's license plate number was parked at the motel from 8:57 a.m. to 1:42 p.m. on March 22, 2015.

Minor Y testified that, while she and Irizarry were in the motel room, Irizarry -- among other inappropriate behavior -- touched her by her "woo," Minor Y's term for "vagina." She further testified that she thought Irizarry wanted to have sex with her, and she stated at trial that she "didn't like what he did." After they drove back to her family's home, Minor Y did not immediately tell anyone what had happened, as she was afraid that her father would hit her.

Minor Y testified that about a week later Irizarry took her to another motel, located near a boardwalk where they had just obtained food. She explained that the entrance of the motel had "some dolphins," "its name," and "some palm trees." Minor Y identified this second motel as the Marbella motel through photographs provided by the government and entered into evidence, although she did not explicitly identify the motel by name. She also testified in graphic detail about various sexual acts that Irizarry committed once inside the motel room, including that Irizarry ejaculated on Minor Y.

Relevant to one of Irizarry's claims of evidentiary error, one of Minor Y's neighbors, Wanda Pagan-Colon, testified that Minor Y and her sister were visiting Pagan's house when Minor Y thought she heard the sound of Irizarry's Suzuki Vitara outside. After Minor Y told Pagan and her sister to "listen," she "got very nervous. Her eyes got really big. She started moving her fingers, and she started looking everywhere when she said that she heard the sound of the car." Only about a week had passed since the Marbella motel incident. After hearing the truck, Minor Y's sister mentioned that their mother did not "want Old Man Wally at the house."

Seeing Minor Y's distress, Pagan asked if Irizarry had done anything to her. Pagan testified, over Irizarry's objections, that while Minor Y initially denied that anything had happened, she was acting very nervous and unusual and so Pagan "insist[ed] and [she] asked [Minor Y], did he do anything to you?" Minor Y got even more nervous and said, "Yes, Ti-Ti."³ Pagan then asked, "What did he do? Tell me what he did to you." Minor Y began to explain, but Pagan asked, "[W]hat he has between his legs, did he put it in your woo-woo?" Minor Y responded, "Yes, Ti-Ti." Pagan asked, "What else happened?" Minor Y reportedly told her, while crying, that "some white stuff came out." When Pagan later looked out of her window, she indeed saw Irizarry's truck parked across the street outside Minor Y's house. Irizarry argues on appeal that Pagan's testimony concerning Minor Y's statements was hearsay improperly admitted by the district court under the "excited utterance" exception. See Fed. R. Evid. 803(2).

Relevant to Irizarry's other claim of evidentiary error, Minor Y's aunt, Sarah Mercado-Alicea, testified at trial that she was at Minor Y's house one day in 2015 when Minor Y came home with Irizarry and complained to her that her "ass" hurt. Mercado told Minor Y, "Be careful that that old man hasn't done anything to you." In response, Minor Y, in Mercado's words, "smiled at me, but she smiled a very sort of sad smile" and shrugged her shoulders while making a facial gesture. Mercado testified that she interpreted Minor Y's response to "mean[ ] that the old man had hurt her." Irizarry argues on appeal that this statement by Mercado was inadmissible as an opinion on an ultimate issue, see Fed. R. Evid. 704, and as an opinion on a witness's credibility.

II. PROCEDURAL HISTORY

A grand jury charged Irizarry with three counts of transportation of a minor with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a).⁴ One count was later dismissed pursuant to the government's motion. Of the remaining two counts, the jury found Irizarry guilty on the count related to his alleged conduct in connection with the first motel, the El Eden motel, but it acquitted him on the count related to his alleged conduct in connection with the second motel, the Marbella motel.⁵

In its Presentence Investigation Report (PSR), the U.S. Probation Office calculated a base offense level of 28 for Irizarry's § 2423(a) conviction. The PSR then added a 2-level enhancement because the offense involved a sex act, an 8-level enhancement because the offense involved a minor under the age of twelve, and a 5-level enhancement because the offense involved a "pattern of activity involving prohibited sexual conduct." These enhancements resulted in a total offense level of 43, which -- based on Irizarry's criminal history category of I -- resulted in a guideline sentence of life imprisonment.

Irizarry objected to the PSR -- specifically to the 5-level enhancement for a "pattern of activity involving prohibited sexual conduct" -- on the basis that the jury had only found him guilty on one count and had acquitted him on the other. Therefore, he argued, no pattern of activity existed.

The district court adopted the PSR guideline calculations and considered the 18 U.S.C. § 3553(a) factors. The judge took into account Irizarry's age and his health problems, explicitly stating that "the Court has considered the effect that a prolonged sentence of imprisonment could have on Mr. Irizarry's health, as well as the Bureau of Prisons' ability to provide proper medical care to the defendant under custody." The judge sentenced Irizarry to 235 months' imprisonment, below the recommended guideline range of life imprisonment, writing, "Taking into consideration the totality of the record, a sentence below the advisory guideline range is a sentence sufficient and not greater than necessary to promote the objectives of sentencing."

III. EVIDENTIARY RULINGS

We review preserved challenges to the district court's evidentiary rulings for abuse of discretion. United States v. Spencer, 873 F.3d 1, 14 (1st Cir. 2017). An "[a]buse of discretion occurs when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers...