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
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
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 magazineloaded 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
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
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.