FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
E. Rivera-Ortíz for appellant.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.
Torruella, Thompson, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
case up today presents us with a cautionary tale of what not
to say and who not to say it to, and the consequential
aftermath which can flow from such a slip-up. Here's what
24, 2012, a Puerto Rico Police officer out on patrol watched
Bauzó pull a pistol out of the waistband of his pants
and pitch it into a black SUV. The officer approached
Bauzó and asked him whether he had a license to carry
a firearm. When Bauzó said no (spoiler alert: this
isn't "THE" slip-up; read on) the officer
walked over to the SUV, opened the door, and spotted the gun
on the floor of the driver's side of the car. The officer
seized the gun and arrested Bauzó. At the police
station, an officer read Bauzó his rights. Then
(spoiler alert: this isn't "IT" either)
Bauzó admitted he was carrying the pistol for his
protection (he sold jewelry and clothing).
point before trial would begin, Bauzó (via his
court-appointed attorneys) and the government discussed the
possibility of a guilty plea. But apparently things
weren't going so well between Bauzó and his
lawyers. In an ex-parte motion to withdraw,
Bauzó's attorneys stated, "[Bauzó]
believes that his counsels have not worked diligently in
negotiating a plea agreement and he does not trust their
professional opinions"; his "animosity toward them
is evident." The motion went on, the attorneys had
visited Bauzó in prison on March 7 and 11, 2014,
"intend[ing] to discuss separate plea offers extended by
the government, " but Bauzó "completely
discarded the offers tendered by counsels." The
attorneys also complained that Bauzó had no interest
in helping them prepare for trial. Bauzó said he had
sent a motion to the trial court via the prison mail system
but, the attorneys continued, the motion's "content
20, 2014, a hand-written letter (reader--this is "THE
SLIP") postmarked March 12, 2014, was entered on
Bauzó's docket as a motion to appoint counsel.
Bauzó was identified as the author, and the letter was
addressed to Judge Carmen Consuelo Cerezo (the judge
presiding over Bauzó's case at the time).
Here's what that letter said:
I have a situation with my lawyer . . . he has no interest in
my case [and] I do not have good communications with the
lawyer . . . Because of these reasons I would like to ask of
the Honorable Judge to change counsel . . . if possible. I
want to take advantage to notify you that I, Jaime
Bauzó Santiago . . . have always accepted my
responsibility as to guilt, the only thing that I ask of you
is that the time for the weapons law crime be a reasonable
letter was signed "Jaime Bauzó Santiago."
trial court granted Bauzó's now-ex lawyers'
ex-parte motion to withdraw and appointed new counsel on May
forward four months. No plea deal had been reached, and the
government (in preparation for trial) added the March 12th
letter to its trial exhibit list. Bauzó filed a motion
in limine to exclude the letter "purportedly sent"
by him--he claimed it was a statement made during plea
negotiations under Federal Rule of Evidence 410, its
admission would be unfairly prejudicial under Rule 403, and
that under either rule the government should not be allowed
to introduce the letter. The court denied his motion.
trial, the government moved to admit the letter into evidence
as exhibit 3. By way of foundation, an agent with the Bureau
of Alcohol, Tobacco, Firearms, and Explosives
("ATF") who worked on Bauzó's case
testified that he went to the clerk's office, requested a
copy of Docket Entry 94, and received Bauzó's
letter. Bauzó objected and asked the government to
explain how it intended to authenticate the letter as a
document written by him. The government countered that it was
for "the jury to decide and give the weight they can
give to that handwriting and statement admission." The
court noted that the letter bore Bauzó's
signature, overruled his objection, and permitted the
government to admit the letter. The admitted version,
redacted to remove any reference to plea bargaining or the
dispute between Bauzó and his lawyers, read in
relevant part as follows: "I want to take advantage to
notify you that I, Jaime Bauzó Santiago . . . have
always accepted my responsibility as to guilt for the weapons
law crime." On cross-examination, the agent said he did
not know who wrote the letter, or whether the signature and
handwriting were authentic--he just picked it up at the
clerk's office. Then at the government's request--and
with no objection from Bauzó--the court took judicial
notice of the fact that "Judge Cerezo was the original
judge assigned to this case . . . and that this document,
docket number 94, is still part of the docket of the
case." Later, the government introduced a copy of the
Miranda warnings that Bauzó signed at the station. A
second ATF agent testified that she witnessed Bauzó
sign the warnings and write his name.
government put on other evidence in its case against
Bauzó that is relevant to our task here on appeal.
Most notably, the jury heard testimony from the Puerto Rico
Police officer who saw Bauzó toss the gun, who
arrested Bauzó, and to whom Bauzó admitted that
he did not have a license for the gun.
the close of the evidence and the jury instructions (which we
address at greater length below), the jury convicted
Bauzó of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).
was sentenced on February 12, 2015. The Pre-Sentence
Investigation Report ("PSR") determined that
Bauzó qualified as a career criminal under the Armed
Career Criminal Act ("ACCA") because he had at
least three violent felony convictions. We will get into the
particulars of his sentence later; for now we note only that
the court did not indicate which of Bauzó's prior
convictions were predicates, and that Bauzó did not
object to his career-offender categorization. As a result,
Bauzó was subject to a mandatory-minimum sentence of
fifteen years and a career-offender Guidelines sentencing
enhancement. Ultimately, he was sentenced to fifteen years
and eight months in prison.
appealed, and that brings us up to today.
appeal, Bauzó raises three challenges to what happened
below. First, he argues that the district court erred by
admitting his letter under Rule 410. Second, he challenges
the district court's end-of-trial judicial-notice jury
instruction, claiming it made the jury think he wrote the
letter (and so admitted to doing the crime he was on trial
for committing). And finally, he says the court erred in
finding that he qualified as a career criminal. We review
each of these challenges in turn, but finding none have
merit, we reject them all and affirm his sentence.