United States of America v. Kelmit Oquendo-Rivera

United States Court of Appeals
For the First Circuit
No. 08-2481
UNITED STATES OF AMERICA,
Appellee,
v.
KELMIT OQUENDO-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Héctor L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, was on brief for
appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief
Appellate Division, were on brief for appellee.
November 5, 2009

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BOUDIN, Circuit Judge. Kelmit Oquendo-Rivera ("Oquendo")
seeks review of a district court decision revoking supervised
release and sentencing him to a further term in prison. The
circumstances are unusual and we conclude that further proceedings
are required.
The pertinent background is as follows. In 2000, Oquendo
pled guilty to possessing cocaine base with intent to distribute
and was sentenced to 78 months in prison and five years of
supervised release. He left prison in October 2004 and began
serving his supervised release term. In the following three and a
half years, it appears that Oquendo attended technical school
refrigeration courses and ran a car detailing business. During
this period, he was tested for drug use and never tested positive.
On February 21, 2008, Oquendo was present along with
other individuals at a residence in the town of Yauco, Puerto Rico,
in the early afternoon when 10 to 15 police officers arrived with
a warrant to search the residence. Shooting then occurred and,
according to the government, Oquendo shot at a police officer--
Rashid Feliciano--who then shot Oquendo as the latter was fleeing
from the residence. There is no doubt that Feliciano shot and
badly wounded Oquendo; the question is whether Oquendo was
mistakenly identified by Feliciano as his shooter. Whether Oquendo
was present merely as an innocent visitor (as he claims) or there
for some improper purpose bears on this issue but in either event

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Those charges were associating with a criminal, failing to 1
notify his probation officer about being questioned by police, and
failing to submit a monthly supervision report. Although based on
a much earlier event, the charges were advanced only after the
Yauco incident.
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the ultimate issue is whether Oquendo had a gun and fired at
Feliciano.
After the Yauco incident, Oquendo was charged in the
district court with violating several of his conditions of release:
committing a crime, frequenting a place where controlled substances
are distributed or used, and failing to notify his probation
officer of his arrest. 18 U.S.C. § 3583(d) (2006). Also included
in the same motion were several other charges that concerned an
unrelated incident two years earlier in which Oquendo was stopped
and questioned by an officer while walking with a person who had a
history of drug trafficking.1
By far the most serious charge was shooting at a police
officer, and separate criminal charges under Puerto Rico law were
filed against Oquendo in a local Puerto Rico court; whether or not
formally dismissed, it appears that local charges have not been
pursued. However, the district court convened a supervised release
revocation hearing at which it heard testimony from several of the
police officers involved in the Yauco incident, including
Feliciano, as well as testimony by Oquendo.
Feliciano testified that when he arrived at the scene a
person shot from a window of the house, then exited the window and

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Tirado testified that he saw a man who was not Oquendo fire 2
at him from the balcony of the house, exit and flee the house's
front entrance with a revolver in his right hand, jump a fence, and
escape--never to be arrested. Officer Jose Brasero similarly saw
a man who fled the front entrance of the house at the beginning of
the shooting.
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ran on a ledge beside the house while shooting at Feliciano with a
revolver held in the person's left hand. Feliciano specifically
said the weapon involved was a revolver (as opposed to a magazine-
loaded gun). Feliciano testified that he shot at the person and
hit him in the leg, and that the person hesitated but did not fall
and then jumped a fence and kept running. When Oquendo was later
found wounded, Feliciano identified him as the person who had shot
at him and fled.
Numerous officers had been present but no other officer
testified to seeing Oquendo with a gun of any type or to seeing
anyone shooting at Feliciano. Two officers other than Feliciano
testified at the hearing that a shootout occurred, and one
testified to seeing another man who was not Oquendo shoot at a
different officer (Juan Tirado) with a revolver; both said the
other man ultimately escaped. No officer testified to seeing two 2
different individuals shoot from the house and flee.
Oquendo testified that he went to the residence on the
day of the shooting to provide a car detailing quote for a van
owner who was present there; seeing drugs in the house (apparently
through an open door or window), Oquendo decided not to enter but

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merely to wait outside the door for someone to bring him the van
owner's keys. At that point, he says, he saw two or three
individuals running at him with weapons drawn; not realizing that
they were police officers, he ran toward the back of the house and
jumped a fence and landed on the other side where he was hit in the
leg by a bullet and badly injured.
Oquendo was eventually found, seriously wounded and
bleeding, by Officer Hector Castillo at a neighboring house;
Oquendo said that he had dragged himself there after being shot.
Castillo searched Oquendo and found money, two cellular phones, and
keys belonging to different cars on his person. Castillo also said
that he found a small bag of cocaine tucked in between the money;
Oquendo claims instead that Feliciano later produced the bag and
told Oquendo to "shut up" when Oquendo denied that the bag was his.
Five individuals were found and arrested in the house where the
police also found crack cocaine and a loaded pistol with an
extended magazine; but no revolver was found there or anywhere in
the area.
Oquendo ultimately was taken to the hospital on a
stretcher. There, asked by an officer whether he wanted to be
charged with using or selling the bag of cocaine allegedly found on
his person, Oquendo said he would rather be charged with using--a
less serious charge. The government is hard put to argue that this

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amounted to a confession of use or possession, given the way the
question was asked and the incentive created for the answer given.
In argument at the hearing, Oquendo's counsel pointed out
that the shootout scene was confusing and no officer other than
Feliciano claimed to have seen Oquendo shoot at anyone; that
Oquendo is right-handed--which the government does not dispute--
whereas Feliciano had said that the man who shot at him held the
gun in his left hand; and that Oquendo's leg injury was of such
severity that, contrary to Feliciano's claim, Oquendo could never
have been shot and then have leapt over the fence (Feliciano
himself admitted that he found no blood on or near the fence).
Defense counsel also argued that because Feliciano had
shot and badly injured the fleeing Oquendo, the officer himself had
good reason to say that he recognized Oquendo as the man who had
shot at him. Feliciano himself could have been subject to
discipline or liability if he had shot at a retreating individual
who was not directly implicated in a serious offense. And, given
that the scene had been a confused one and another individual had
fired at the police, the possibility exists that Feliciano indeed
believed himself to have been fired upon and simply made a mistake
as to who had done it.
Nevertheless, at the close of the hearing the district
court found from the bench that Oquendo had committed a grade A
violation by "having the gun and shooting the agent." The district

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judge observed that adrenalin could account for a wounded man's
ability to leap over a fence. The court revoked Oquendo's
supervised release and sentenced him to five years' imprisonment,
the maximum term allowed under the statute. 18 U.S.C. §
3583(e)(3). The district judge did not address or rely on the
lesser alleged violations relating to the Yauco incident or the
incident two years before.
After failing on a motion for reconsideration, Oquendo
appealed from the district court's revocation decision and
sentence. It is common ground that the government's burden at the
hearing was to prove by a preponderance of the evidence a violation
of one or more conditions of release, 18 U.S.C. § 3583(e)(3);
United States v. Whalen, 82 F.3d 528, 531-32 (1st Cir. 1996);
United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993). If
such a violation were proved, the district judge's decision whether
to revoke supervised release and what penalty to impose would be
reviewed only for abuse of discretion. United States v. McInnis,
429 F.3d 1, 3-4 (1st Cir. 2005); Whalen, 82 F.3d at 532.
The finding of violation in this case--that Oquendo had
a weapon and fired at an officer--is a factual determination
reviewed by us primarily for clear error. See Whalen, 82 F.3d at
532. This, we have said, would require a "definite and firm
conviction" that the finding was erroneous, United States v.
Henderson, 463 F.3d 27, 32 (1st Cir. 2006) (quoting United States

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v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005), cert. denied, 546 U.S.
1222 (2006)), a conclusion made difficult because the reviewing
court must interpret the evidence in the light most favorable to
the government, Portalla, 985 F.2d at 622, and credibility is
largely a matter for the fact-finder, Ivery, 427 F.3d at 72.
Because the district judge chose to believe one and not
the other of two witnesses before him, it might seem that the
choice of whom to credit resolves the matter. But the credibility
of a story depends not only on the seeming sincerity of witnesses
and their demeanor in the courtroom but also on more objective
criteria: for example, consistency (both internal to the testimony
and with the physical evidence), probability, access of the witness
to information, his bias or interest, and corroboration or
unexplained contradiction of his testimony by undisputed testimony
or empirical evidence. As the Supreme Court has said, "[d]ocuments
or objective evidence may contradict the witness' story; or the
story may itself be so internally inconsistent or implausible on
its face that . . . the court of appeals may well find clear error
even in a finding purportedly based on a credibility
determination." Anderson v. City of Bessemer City, 470 U.S. 564,
575 (1985).
Here, both of the key witnesses had a stake in the
outcome. Oquendo's testimony was the more consistent and obviously
he knew what had happened; Feliciano, by contrast, was confronted

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The court speculated that Oquendo's revolver might not have 3
been found because houses in the area were so small and close
together that "[t]here are 20,000 little places to hide a gun there
or throw a gun out." But nothing explains how a crawling, bleeding
man could have disposed effectively of his weapon.
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with a confused scene and his testimony is marred by at least two
significant tensions yet to be discussed. Still, the district
judge could have credited the independent testimony of Castillo
that Oquendo had a small amount of cocaine in his pocket. This
showed neither that Oquendo had a gun nor that he fired it, but any
cocaine on Oquendo's person might seem like a loose thread that
could unravel his otherwise sympathetic claim of three years of
rehabilitation and innocent presence at the scene.
Nevertheless, this is a case in which real doubt exists
about Oquendo's guilt. Apart from Feliciano, no one among the 10
to 15 officers present at the scene testified that Oquendo was
armed or had fired. According to another officer's testimony, a
different individual did shoot at the police and flee, so Feliciano
could have been mistaken as to the shooter. Nor is it easy to
imagine the right-handed Oquendo shooting, as Feliciano claimed,
with his left hand. And the weapon Oquendo supposedly used was
never found; while the district court said it might have been
hidden, it is hard to understand how a badly wounded man could have
secreted it from a serious search.3
A further discrepancy in Feliciano's testimony is even
more troubling. Feliciano testified unequivocally that he shot

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Oquendo before Oquendo went over the fence. Quite apart from the
lack of blood near or on the fence, the damage to Oquendo's leg was
savage; Oquendo testified that when he was shot, he felt like his
"leg was hanging," held in place only by the skin, and he had to
drag himself by holding onto his shoe which was heavy. Castillo
testified that Oquendo was screaming in pain and could neither walk
nor jump when he was found; in fact his leg was broken and months
later Oquendo was still limping with a rod holding his knee to his
ankle.
The notion that Oquendo could have jumped over a
substantial fence--seemingly from a videotape of the scene earlier
in the day at least four or five feet high--after he was shot is
hard to accept without more explanation. The district judge
speculated that this could be the result of adrenalin, but there
was no medical testimony of any kind, let alone proof that
adrenalin could boost anyone with the damage suffered by Oquendo
over a sizably high fence. A fact finder may rely on common
knowledge, United States v. Amado-Nunez, 357 F.3d 119, 121-22 (1st
Cir.), cert. denied 542 U.S. 914 (2004), but this hardly seems to
fall into that category.
Conversely, the district judge did not mention the
possibility that the known but escaped shooter could have been the
person who fired at Feliciano. He also did not discuss Feliciano's
unqualified statement that the shooter shot with his left hand

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while the evidence indicated that Oquendo was right-handed--except
to deem the issue "immaterial" without explaining why--nor did he
discuss Oquendo's seemingly good record after his release and
colorable innocent explanation for his presence, the lack of
identification by any other officer, or Feliciano's own possible
motive for testifying inaccurately.
Criminal trials--which this effectively was--are no place
for naivete; Oquendo had once dealt drugs, may have had drugs in
his wallet on this occasion and--if involved in a new drug venture-
-had good reason to be desperate to escape. Nothing we know makes
it certain that Oquendo is innocent of the shooting; and it is
still less certain that he is innocent of less serious violations
that were charged but not resolved. But the evidence that he shot
at Feliciano is assuredly shaky and we cannot on this record, at
least on the basis of the explanation provided, sustain the finding
of Oquendo's guilt. See generally United States v. Forbes, 181
F.3d 1 (1st Cir. 1999).
Juries are not required--indeed, as a joint lay body are
scarcely able--to give detailed explanations for their decisions;
but trial judges in proceedings of this kind are expected to give
some explanation, Morrissey v. Brewer, 408 U.S. 471, 489 (1972);
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), unless the basis is
plain from the record. How much explanation depends on the
circumstances--for example, on the closeness of the case, the

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See United States v. Stephenson, 928 F.2d 728, 733 (6th Cir. 4
1991) (remanding a revocation of supervised release because of a
lack of reliable evidence and the district court's insufficient
explanation of the reasons and evidence supporting revocation);
United States v. Smith, 767 F.2d 521, 524 (8th Cir. 1985)(remanding
for the district court to augment its explanation of the basis for
probation revocation); United States v. Lacey, 648 F.2d 441, 444-45
(5th Cir. Unit A June 1981) (same), cert. denied, 456 U.S. 961
(1982).
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nature and extent of gaps or doubts, and the plausibility of
suppositions used to fill the gaps or answer the doubts. In some
cases, a result, possibly defensible, may not have been adequately
explained or supported.
That is our conclusion in this case. Given the
relatively weak evidence, we think the decision is undermined by
the reliance on guesswork about adrenalin to account for Oquendo's
ability to jump the fence, the lack of explanation for the missing
weapon he allegedly carried, and the failure to discuss a series of
points that seem relevant and undercut Feliciano's testimony and
other points that gave at least some indirect support to Oquendo's
testimony. Whether in further proceedings more evidence and more 4
explanation can justify the result is a matter for the future, if
the government chooses to pursue this particular charge.
We have great respect for the experience and skill of the
district judge but think that it makes sense for further
proceedings to be conducted by another district judge. Reversal
because of an error in instructions or a grant of summary judgment
rarely calls for a such a change, which always has some costs in

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efficiency; but where the judge is the decider of facts, it is hard
to ask him to put aside a belief sincerely arrived at and look at
the evidence through fresh eyes. Other districts sometimes so
provide in their rules for a change of judges in such a situation,
D.N.H. R. 40.2(b); and we think that at least from the standpoint
of appearance this would be the better course in this case.
The decision and sentence of the district court are set
aside and the matter remanded for further proceedings in accordance
with this decision.
It is so ordered.

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