894 F.3d 36 (1st Cir. 2018), 15-1900, United States v. Fernndez-Jorge
Citation | 894 F.3d 36 |
Opinion Judge | TORRUELLA, Circuit Judge. |
Party Name | UNITED STATES of America, Appellant, v. Angel Gabriel FERNANDEZ-JORGE, Defendant, Appellee. United States of America, Appellee, v. Brian Pérez-Torres, Defendant, Appellant. United States of America, Appellee, v. José A. De La Cruz-Vazquez, Defendant, Appellant. United States of America, Appellee, v. Edwin Otero-Diaz, Defendant, Appellant. ... |
Attorney | Victor P. Miranda-Corrada, San Juan, PR, for appellant Fernandez-Jorge. Ramón M. Gonzalez, San Juan, PR, on brief for appellant Pérez-Torres. Humberto Guzman-Rodriguez and Guzman & Rodriguez-López Law Office, on brief for appellant De la Cruz-Vazquez. Edgar L. Sanchez-Mercado, San Juan, PR, on br... |
Judge Panel | Before Torruella, Lipez, and Barron, Circuit Judges. |
Case Date | June 26, 2018 |
Court | United States Courts of Appeals, U.S. Court of Appeals — First Circuit |
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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domnguez, U.S. District Judge ]
Victor P. Miranda-Corrada, San Juan, PR, for appellant Fernandez-Jorge.
Ramón M. Gonzalez, San Juan, PR, on brief for appellant Pérez-Torres.
Humberto Guzman-Rodriguez and Guzman & Rodriguez-López Law Office, on brief for appellant De la Cruz-Vazquez.
Edgar L. Sanchez-Mercado, San Juan, PR, on brief for appellant Otero-Diaz.
Juan A. Albino-Gonzalez, with whom Albino & Assoc. Law Office, PC, San Juan, PR, was on brief, for appellant Mendoza-Ortega.
Lauren E.S. Rosen, Assistant Federal Public Defender, with whom Patricia A. Garrity, Research and Writing Specialist, Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant Otero-Marquez.
Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Vélez, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Torruella, Lipez, and Barron, Circuit Judges.
OPINION
TORRUELLA, Circuit Judge.
After a jury trial, Angel Gabriel Fernandez-Jorge, Brian Pérez-Torres, José A. De La Cruz-Vazquez, Edwin Otero-Diaz, Isaias Mendoza-Ortega, Edwin Otero-Marquez, and Rafael Martinez-Trinidad (collectively, the "Defendants") were found guilty of possessing firearms in a school zone.1 The jury also found Mendoza-Ortega and Otero-Marquez guilty of possessing firearms as convicted felons. All of the Defendants then brought motions for acquittal, but the district court granted only that of Fernandez-Jorge. Now, the government appeals the district courts grant of Fernandez-Jorges motion, while Pérez-Torres, De La Cruz-Vazquez, Otero-Diaz,
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Mendoza-Ortega, and Otero-Marquez (collectively, the "Defendant-Appellants") appeal the district courts denial of their motions for acquittal. We also consider whether the district courts jury instructions concerning aiding and abetting liability were erroneous.
After considering all of this, we hold the following: (1) sufficient evidence supported the Defendant-Appellants convictions for possession of a firearm in a school zone (Count Three); (2) sufficient evidence did not support Fernandez-Jorges conviction for possession of a firearm in a school zone; (3) the district courts erroneous jury instructions on aiding and abetting liability require us to vacate the Defendant-Appellants convictions for Count Three; and (4) sufficient evidence did not support the convictions of Mendoza-Ortega and Otero-Marquez for possession of a firearm as convicted felons, which requires us to reverse their convictions for Count One.
I. Background
We begin with a brief summary of the facts and procedural events leading up to this appeal, into which we shall delve with greater detail in taking up the various issues the parties have raised. Because this appeal pertains, in part, to the Defendants motions for acquittal before the district court, we recount the facts here "in the light most favorable to the government." See United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018).
A. The shootout
A shootout took place in front of the Jardines de Oriente public housing project, in Humacao, Puerto Rico, during the late morning of February 16, 2012. Officers from the Puerto Rico Police Department arrived at Jardines de Oriente shortly after the gunfire stopped. They observed several people in dark clothing abscond— jumping the housing projects perimeter fence and entering the large concrete tunnel behind the fence into which the Mabúcreek drains. That tunnel runs between the Jardines de Oriente and the Rufino Vigo public elementary school (the "School"). It ends at the Doctor Palou public housing project. Officers positioned themselves outside of the tunnels entrance. Two men attempted to escape from the top of the tunnel through a manhole. After police fired a warning shot, one of these men, De la Cruz-Vazquez, dove into some nearby bushes and was promptly arrested, searched, and found to be carrying ammunition. The other man retreated back down the manhole in response to the warning shot.
Meanwhile, the officers waiting at the entrance to the tunnel heard voices and the sound of gunfire from inside the tunnel. The officers ordered anyone inside the tunnel to exit with their hands up. The six remaining Defendants— all shirtless and unarmed— emerged from the tunnel and were arrested. Officers then searched the tunnel and recovered seven firearms, ammunition, and various articles of clothing. Ballistics analyses would later link four of these weapons to the shootout at Jardines de Oriente.
Five of the Defendants stated that they lived at the Doctor Palou public housing project, located at the end of the tunnel opposite where the shootout occurred. Mendoza-Ortega lived elsewhere in Humacao. Fernandez-Jorge was not from Humacao, but rather from San Juan.
B. The trials
In February 2012, a grand jury returned an indictment against the seven individuals arrested in connection with the shootout. Count One of the indictment charged Otero-Marquez and Mendoza-Ortega with possessing firearms as convicted felons, in the
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principal and aiding and abetting forms. See 18 U.S.C. § § 2, 922(g). Count Three accused all seven Defendants of possessing firearms within a school zone, also in the principal and aiding and abetting forms. See 18 U.S.C. § § 2, 922(q)(2)(A).2
All of the Defendants proceeded to trial, and the jury found all of them guilty on all counts. However, it then came to light that, through unsanctioned research, one or more members of the jury had discovered that two people died during the shootout.3 This forced the district court to declare a mistrial.
A second trial ensued, and the jury again found all Defendants guilty on Count Three, and found Mendoza-Ortega and Otero-Marquez guilty on Count One as well. The jury filled out general verdict forms, which did not distinguish between the principal and aiding and abetting forms of the charged offenses. The Defendants proceeded to file motions for acquittal. See Fed. R. Crim. P. 29. In an omnibus order, the district court denied those motions in their entirety, except as to Fernandez-Jorge. According to the district court, the government had not brought forth sufficient evidence that Fernandez-Jorge— who, unlike his codefendants, did not live in Humacao— knew or should have known that he was in a school zone. The court sentenced each of the remaining Defendants to 60 months imprisonment for Count Three. It also sentenced both Mendoza-Ortega and Otero-Marquez to an additional 120 months imprisonment for Count One, to be served consecutively with their sentences for Count Three.
Now, the government appeals Fernandez-Jorges acquittal and the Defendant-Appellants appeal their convictions, challenging both the sufficiency of the evidence and the district courts jury instructions. We first consider whether sufficient evidence supported all of the Defendants convictions on Count Three, and the convictions of Mendoza-Ortega and Otero-Marquez on Count One. We then address whether the district court correctly instructed the jury on aiding and abetting liability.
II. The motions for acquittal
We review a district courts ruling on a Rule 29 motion de novo, viewing the evidence in the light most favorable to the jurys guilty verdict. United States v. Santos-Soto, 799 F.3d 49, 56-57 (1st Cir. 2015). The "verdict must stand unless the evidence is so scant that a rational factfinder could not conclude that the government proved all the essential elements of the charged crime beyond a reasonable doubt." United States v. Rodriguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010) (emphasis in original).
Because Counts One and Three charged the Defendants in the principal and aiding and abetting forms, we also find it useful to review the essentials of aiding and abetting liability. 18 U.S.C. § 2 provides that anyone who aids or abets a crime against the United States "is punishable as a principal."4 One "is liable under
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§ 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offenses commission." United States v. Encarnación-Ruiz, 787 F.3d 581, 587 (1st Cir. 2015) (quoting Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014) ). To be guilty of aiding and abetting a crime, a defendant need not have actually assisted the principal in committing each element of the crime. Id. But, the defendant does need to have "intend[ed] to facilitate the specific and entire crime charged. " Id. (quoting Rosemond, 134 S.Ct. at 1248). As a result, the defendant must...
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