APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez,
U.S. District Judge]
Víctor P. Miranda-Corrada, for appellant
Ramón M. González, on brief for appellant
Humberto Guzmán-Rodríguez and Guzmán
& Rodríguez-López Law Office, on brief for
appellant De la Cruz-Vázquez.
L. Sánchez-Mercado, on brief for appellant
A. Albino-González, with whom Albino & Assoc. Law
Office, PC was on brief, for appellant Mendoza-Ortega.
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-Márquez.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for
Torruella, Lipez, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
jury trial, Ángel Gabriel Fernández-Jorge,
Brian Pérez-Torres, José A. De La
Cruz-Vázquez, Edwin Otero-Díaz, Isaías
Mendoza-Ortega, Edwin Otero-Márquez, and Rafael
Martínez-Trinidad (collectively, the
"Defendants") were found guilty of possessing
firearms in a school zone. The jury also found Mendoza-Ortega and
Otero-Márquez guilty of possessing firearms as
convicted felons. All of the Defendants then brought motions
for acquittal, but the district court granted only that of
Fernández-Jorge. Now, the government appeals the
district court's grant of Fernández-Jorge's
motion, while Pérez-Torres, De La Cruz-Vázquez,
Otero-Díaz, Mendoza-Ortega, and Otero-Márquez
(collectively, the "Defendant-Appellants") appeal
the district court's denial of their motions for
acquittal. We also consider whether the district court's
jury instructions concerning aiding and abetting liability
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 Fernández-Jorge's conviction for
possession of a firearm in a school zone; (3) the district
court's 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-Márquez for
possession of a firearm as convicted felons, which requires
us to reverse their convictions for Count One.
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).
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 project's
perimeter fence and entering the large concrete tunnel behind
the fence into which the Mabú creek 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 tunnel's 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-Vázquez, 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.
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.
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. Fernández-Jorge was not from
Humacao, but rather from San Juan.
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-Márquez and Mendoza-Ortega with possessing
firearms as convicted felons, in the 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).
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.This forced the district court to declare a
second trial ensued, and the jury again found all Defendants
guilty on Count Three, and found Mendoza-Ortega and
Otero-Márquez 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 Fernández-Jorge.
According to the district court, the government had not
brought forth sufficient evidence that Fernández-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-Márquez to an additional
120 months' imprisonment for Count One, to be served
consecutively with their sentences for Count Three.
the government appeals Fernández-Jorge's acquittal
and the Defendant-Appellants appeal their convictions,
challenging both the sufficiency of the evidence and the
district court's 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-Márquez on
Count One. We then address whether the district court
correctly instructed the jury on aiding and abetting
The motions for acquittal
review a district court's ruling on a Rule 29 motion
de novo, viewing the evidence in the light most
favorable to the jury's 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.
Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir.
2010) (emphasis in original).
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." One "is liable under § 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 offense's commission."
United States v. Encarnación-Ruiz, 787 F.3d
581, 587 (1st Cir. 2015) (quoting Rosemond v. United
States, 134 S.Ct. 1240, 1245 (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 have had "advance knowledge" of the
crime he or she facilitated to be guilty of aiding and
abetting it. Id. at 588 (quoting Rosemond,
134 S.Ct. at 1249); see also United States v.
Ford, 821 F.3d 63, 69 (1st Cir. 2016). Finally,
"[p]roving beyond a reasonable doubt that a specific
person is the principal is not an element of the crime of
aiding and abetting." United States v. Campa,
679 F.2d 1006, 1013 (1st Cir. 1982).
The Defendant-Appellants' motions for acquittal on Count
attacking the district court's denial of their Rule 29
motions as to the possession of a firearm in a school zone
count, the Defendant-Appellants advance three categories of
arguments. First, all of the Defendant-Appellants argue that
the government did not introduce sufficient evidence that
they possessed the firearms recovered from the tunnel.
Second, De la Cruz-Vázquez and Otero-Díaz
assert that the government failed to sufficiently establish
that they were, in fact, within a school zone. Finally,
Pérez-Torres, De la Cruz-Vázquez,
Mendoza-Ortega, and Otero-Díaz argue that sufficient
evidence did not support the conclusion that they knew or
should have known that they were in a school zone.