U.S.A v. Figueroa-cartagena

Decision Date16 July 2010
Docket NumberNo. 08-2110.,08-2110.
Citation612 F.3d 69
PartiesUNITED STATES of America, Appellee,v.Neliza FIGUEROA-CARTAGENA, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit


Rafael F. Castro-Lang, 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, were on brief for appellee.

Before TORRUELLA, BALDOCK,* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Neliza Figueroa-Cartagena (Neliza) was found guilty of aiding and abetting a carjacking that resulted in death, 18 U.S.C. § 2119(3); conspiring to commit that carjacking, 18 U.S.C. § 371; and aiding and abetting the carriage or use of a firearm during the carjacking 18 U.S.C. § 924(c)(1)(A)(ii). She and two co-defendants, Félix Gabriel Castro-Davis (“Gabriel”) and Félix Alberto Castro-Davis (“Alberto”), appealed their convictions on a number of grounds, including sufficiency of the evidence. In a separate opinion, we affirmed the convictions of Alberto and Gabriel. See United States v. Castro-Davis, Nos. 08-2108, 08-2109, 612 F.3d 53, 2010 WL 2794360 (1st. Cir.2010). In this opinion, we affirm Neliza's carjacking and conspiracy convictions and reverse her firearm conviction. 1


The underlying facts are set forth in detail in the companion opinion United States v. Castro-Davis, Nos. 08-2108, 08-2109, 612 F.3d 53, 2010 WL 2794360 (1st Cir.2020). As we explained there, the jury could have found from the evidence presented at trial that Gabriel and Alberto carjacked Héctor Pérez-Torres on the afternoon of July 15, 2006 in Caguas, Puerto Rico. There was no evidence presented regarding what happened in the immediate aftermath of the carjacking. Later that evening, Gabriel and Alberto arrived at Neliza's parents' house in Cayey with Pérez handcuffed inside his own car. Gabriel had been living at the house with Neliza, whom he was dating at the time. Although Neliza did not arrive with Gabriel and Alberto, she placed a phone call at that time to her brother José, who was inside the house, and asked him to step outside to speak with Gabriel. When José went outside, Gabriel offered him money to guard Pérez for a while. José agreed, and Gabriel and Alberto left to withdraw money using Pérez's ATM card.

While watching Pérez, José grew nervous and called Gabriel to urge him to hurry. Neliza answered the phone and assured him they were nearby.2 Just after the conversation ended, however, Pérez jumped from the car and attempted to escape. José unsuccessfully tried to force him back into the car, and a struggle ensued until Gabriel, Alberto, and Neliza arrived and subdued Pérez. In the meantime, several neighbors approached the house to inquire about the noise. Neliza told them not to get involved, and she and Gabriel closed a gate to prevent them from approaching.

José went to a gas station after the fight to wash his car and drink a beer. Gabriel, Alberto, and Neliza followed to check on him. Neliza was driving her own car, Gabriel was driving Pérez's car, and Alberto was sitting in Pérez's car holding Pérez in a headlock. The three spoke briefly with José and then drove off in the same direction.

The next day, Neliza and Gabriel met José at the house. Gabriel explained that he and Alberto had killed Pérez the night before by asphyxiating him with duct tape.3 Gabriel and Neliza instructed José to threaten the neighbors and tell them to remain silent about the previous day's events.

The following year, Gabriel, Alberto, and Neliza were charged with aiding and abetting a carjacking that resulted in death, 18 U.S.C. § 2119(3); conspiring to commit that carjacking, 18 U.S.C. § 371; and aiding and abetting the use of a firearm during the carjacking, 18 U.S.C. § 924(c)(1)(A)(ii). After a four-day trial, the jury returned a verdict of guilty on all counts. The district court sentenced Neliza to a total term of imprisonment of 262 months and sentenced Gabriel and Alberto to life imprisonment. This appeal followed.


On appeal, Neliza challenges the sufficiency of the evidence supporting her convictions and claims that the district court made a number of evidentiary and procedural errors that entitle her to a new trial. We address each of her arguments in turn, beginning with the sufficiency of the evidence.

We review de novo the district court's denial of Neliza's motion for judgment of acquittal. United States v. Thompson, 449 F.3d 267, 275 (1st Cir.2006). Our inquiry is whether, taking the evidence in the light most favorable to the verdict, a reasonable factfinder could have found her guilty beyond a reasonable doubt. Id.

A. Carjacking

Neliza's challenge to her carjacking conviction focuses on what we have called the “temporal limits” of the crime. Ramírez-Burgos v. United States, 313 F.3d 23, 30 n. 9 (1st Cir.2002). She claims that her involvement, if any, with Alberto and Gabriel's criminal scheme began long after those two had seized Pérez's car. In her view, there was no basis for the jury to conclude that she aided and abetted the carjacking because it is not possible to aid and abet a crime that has already been committed.4

The basic legal premise of her argument-that she cannot be convicted of aiding and abetting a completed crime-is sound. At common law, participants in a felony were divided into four categories according to the nature and timing of their participation: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). The enactment of the federal aiding and abetting statute in 1909 eliminated the distinctions among the first three categories. The statute now provides that any such participant “is punishable as a principal.” 18 U.S.C. § 2(a); Standefer v. United States, 447 U.S. 10, 19, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). However, Congress chose to retain the fourth category-accessory after the fact-as a separate class whose “offense is distinct and is differently punished.” Bollenbach v. United States, 326 U.S. 607, 611, 66 S.Ct. 402, 90 L.Ed. 350 (1946). Accessories after the fact may generally be imprisoned “not more than one-half the maximum term of imprisonment ... prescribed for the punishment of the principal.” 18 U.S.C. § 3.

The temporal boundary between principals and aiders and abettors, on the one hand, and accessories after the fact, on the other hand, thus remains important in federal criminal law. On each side of that boundary lies a separate offense with separate elements and a separate punishment. United States v. Avants, 367 F.3d 433, 450 (5th Cir.2004). One consequence of that enduring distinction is that “a person cannot be found guilty of aiding and abetting a crime that already has been committed.” United States v. Hamilton, 334 F.3d 170, 180 (2d Cir.2003); SEC v. Papa, 555 F.3d 31, 36 (1st Cir.2009).

This point has important implications for Neliza's liability. To fully understand those implications, we must draw a careful distinction between the “offense” of carjacking and the offense conduct. Like many crimes, carjacking is composed of several different types of elements: the offense conduct (the taking of a motor vehicle from the person or presence of another by force and violence or by intimidation), a mental state (the intent to cause death or serious bodily harm), an attendant circumstance (the transportation of the vehicle in interstate or foreign commerce), and, for aggravated carjacking, a consequence (serious bodily injury or death).5 For purposes of aiding and abetting liability, it is the duration of the offense conduct that matters, since the aiding and abetting statute “states a rule of criminal responsibility for acts which one assists another in performing.” Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (emphasis added); see also United States v. Morales-Cartagena, 987 F.2d 849, 853 (1st Cir.1993) ([A]iding and abetting is a form of agency in which the law holds a defendant criminally responsible for the acts and conduct of another person even though the defendant may not have personally committed every act constituting the offense alleged.”).6 In Neliza's case, if there is no evidence that she aided Gabriel and Alberto in their performance of the offense conduct (either before the fact or during the fact), her conviction cannot stand. Cf. United States v. Delpit, 94 F.3d 1134, 1150-51 (8th Cir.1996).

The factual premise of Neliza's argument-that she did not become involved until after Gabriel and Alberto seized the car-is also sound. The first sign of Neliza's involvement in the criminal episode was a phone call she made to her brother José on the evening of July 15, 2006, asking him to step outside the house to speak with Gabriel.7 But the seizure of the vehicle occurred several hours earlier, in the mid- to late-afternoon. There was no evidence suggesting what Neliza might have been doing at the time of the seizure or when she became entangled in the carjacking scheme. The government attempted to fill this gap at trial by arguing that “somebody” must have driven Alberto and Gabriel from Cayey to the scene of the carjacking in Caguas: They didn't walk from Cayey to Salchichón in Caguas. Somebody took them there, and that someone is Neliza Figueroa-Cartagena.” 8 But the government presented no evidence to support that theory. Needless to say, Alberto and Gabriel could have arrived in Caguas in any number of ways, and they may have sought Neliza's aid...

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