U.S. v. Medina

• Decision Date: 10 August 1994
• Docket Number: D,No. 939,939
• Parties: UNITED STATES of America, Appellee, v. Roberto MEDINA, Defendant-Appellant. ocket 93-1541.
• Court: U.S. Court of Appeals — Second Circuit

Page 40

32 F.3d 40

UNITED STATES of America, Appellee, v. Roberto MEDINA, Defendant-Appellant.

No. 939, Docket 93-1541.

United States Court of Appeals Second Circuit.

Argued March 10, 1994.

Decided Aug. 10, 1994.

Sanford M. Katz, New York City, for defendant-appellant.

Lorin L. Reisner, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., New York City, Nelson W. Cunningham, Asst. U.S. Atty., of counsel), for Appellee.

Before: WALKER, JACOBS, Circuit Judges, and ZAMPANO, ^* District Judge.

JACOBS, Circuit Judge:

Defendant-Appellant Roberto Medina devised a plan to rob his former employer, but feared he would be recognized by co-workers if he was present during the crime. Medina therefore recruited Jose Lopez to carry out the plan, and Lopez in turn recruited two other confederates. Before the date of the planned robbery, Lopez agreed to act as an informant and betrayed Medina's plot to the police. Count One of the indictment charged Medina and Lopez's recruits with attempted robbery and conspiracy to commit robbery, in violation of 18 U.S.C. Sec. 1951; and aiding and abetting robbery, in violation of 18 U.S.C. Sec. 2. Count Two charged them with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c); and aiding and abetting that offense, in violation of 18 U.S.C. Sec. 2. After a jury trial in the Southern District of New York (Mukasey, J.), Medina was convicted and sentenced, inter alia, to a 46 month prison term on Count One and a consecutive 60 month prison term on Count Two.

On appeal, Medina argues that his conviction on Count One must be reversed because (a) the evidence is insufficient to establish either that Medina conspired with Lopez before he became a government informant or that Medina conspired with anyone other than Lopez; and (b) the court erroneously instructed the jury that Medina could aid and abet the other confederates using Lopez as an intermediary even though Lopez was acting as an informant. Medina argues that his conviction on Count Two must be reversed because (a) the evidence was insufficient to establish that he aided and abetted the use or carrying of a firearm in relation to the robbery; and (b) the court's charge erroneously permitted the jury to convict Medina merely on a finding that he knew a gun would be used during the crime. We affirm his conviction on Count One. We reverse as to Count Two, however, because we agree with Medina that the evidence was insufficient to convict him of aiding and abetting the firearms violation. The critical circumstances supporting reversal are as follows. Medina performed no act that specifically aided and abetted the use or carrying of a gun during the attempted robbery. Medina was involved only in the planning stage of the robbery, and his plans did not entail a gun that was actually used or carried during the attempted robbery. Although his coconspirators did carry guns during the attempted robbery, Medina did not aid and abet them in that respect, nor was he present during the attempted robbery when the guns were carried or used.

BACKGROUND

Roberto Medina was employed by the Foundation Construction Company for a brief period ending in October 1992. During his employment, he learned that in late December the company would have between $17,000 and $30,000 on its premises (apparently, the company's payroll and Christmas bonus money). Medina decided to rob the company, and revealed his plan to Jose Lopez early in December. Medina and Lopez discussed the robbery at least three times over the next several days. Eventually, on or about December 11, Medina asked if Lopez was willing to perform the actual robbery--explaining that he could not do it himself, since a former employee would probably be recognized. Lopez agreed to carry out the robbery, and enlisted the assistance of two other men, Louie Villanueva and Daniel Delgado.

On December 15, however, Lopez was arrested for carjacking and a related firearms violation. Lopez confessed the carjacking to detectives, and then went on to disclose Medina's plan to rob the construction company. The detectives persuaded him to act as a confidential informant and to permit them to monitor and record his conversations with his coconspirators.

Following the instructions of detectives, Lopez telephoned Villanueva the next day and reviewed the robbery plans; Villanueva confirmed that he and Delgado were ready to commit the robbery. Lopez then met Medina at a Brooklyn candy store, where they discussed the robbery. Medina told Lopez to call him later that night. After leaving the candy store, Lopez met Villanueva and Delgado at a bodega several blocks away, briefed them on his conversation with Medina, and discussed details of the robbery.

That evening, Lopez telephoned Medina as planned. Medina told him that the robbery should take place between 4:00 and 4:30 p.m. on the following Tuesday, December 22. While Medina was advising him on other aspects of the robbery, Lopez mentioned that Villanueva was going to help commit the crime. Medina, generalizing that, "yeah, two heads are better than one," approved of the additional participant. Medina discussed Villanueva's role in the robbery and share of the loot, referring to robberies at one point as "stickups."

On December 21, 1992, Lopez drove with Villanueva and Delgado to the construction company's office, making final arrangements for the next day's robbery. In separate telephone conversations that night with Villanueva and Medina, Lopez once again confirmed the details of the robbery plan.

On the day the robbery was to occur, December 22, 1992, Lopez spoke with Medina twice by telephone. In the morning, Medina expressed concern that Lopez might try to cheat him out of his share of the robbery proceeds, and requested that Lopez bring the loot to him directly after the crime was completed. He then told Lopez exactly where the money would be kept on the company's premises. Medina paged Lopez's beeper later that afternoon, and asked whether Lopez had a gun. Lopez answered that Villanueva had a gun. Medina then offered to provide a second gun, and arranged to deliver it to Lopez at the Brooklyn candy store. When they met a short time later, Medina handed Lopez an unusual .31 caliber revolver, and instructed Lopez on how to use it. After this meeting, Lopez gave the gun to a detective who had been conducting surveillance near the candy store.

At about 3:30 that afternoon, Villanueva and Delgado arrived at the construction company. They were arrested as they approached the front door. Both Villanueva and Delgado carried semi-automatic pistols; neither carried the weapon that Medina had given Lopez. Medina was arrested a short time later.

DISCUSSION

A. Conspiracy to Commit a Robbery

Medina argues that the evidence at trial was insufficient to convict him of conspiring to rob the construction company. We disagree and begin by noting the heavy burden a defendant must carry when challenging the sufficiency of the evidence. See e.g., United States v. Alkins, 925 F.2d 541, 555 (2d Cir.1991). In reviewing Medina's conviction, we must consider the evidence in the light most favorable to the government, see United States v. Torres, 901 F.2d 205, 216 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990), drawing all reasonable inferences and resolving all issues of credibility in its favor, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988).

Medina's primary attack on his conspiracy conviction is that he could not have conspired with Lopez as a matter of law, because Lopez was already acting as a government informant when he agreed to commit the robbery for Medina. Lopez testified that he agreed to participate in Medina's robbery plan on either December 11 or December 13. The government contends that Lopez did not become an informant until December 15. Medina argues, however, that Lopez was acting as an informant by December 11, and that the evidence conclusively demonstrates this. He directs our attention to the fact that Lopez was initially arrested for the carjacking on November 17, 1992, and released the same day after exchanging beeper numbers with one of the detectives who had arrested him. Lopez and the detective contacted one another using the beeper numbers prior to December 15. Although the police obviously knew where Lopez could be found and had obtained an arrest warrant on November 25, they made no attempt to arrest him until December 15. The government, for its part, cites trial testimony explaining that Lopez was released after his initial arrest because the carjacking victim failed to identify him in a line-up; that Lopez's telephone conversations with detectives between November 17 and December 15 concerned other participants in the carjacking; and that Lopez's arrest on December 15 was based on information provided by an accomplice.

Medina claims that the evidence can support but one possible inference: that Lopez was acting as an informant by December 11. There is evidence, however, to support the view that Lopez's conversations with detectives prior to December 15 concerned the carjacking, and that he was not acting as an informant until after that date. Drawing all inferences and resolving all credibility issues in favor of the government, we cannot say that such a jury determination would be irrational, and therefore will not disturb it.

The evidence is also sufficient to support a finding that Medina conspired with Villanueva. When Lopez told Medina that he had brought Villanueva into the scheme, Medina expressly approved the participation of the new coconspirator, on the principle that "two heads are better than one." Medina also learned from Lopez that Villanueva would be carrying...