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United States v. Fernández-Jorge

United States Court of Appeals, First Circuit

June 26, 2018

UNITED STATES OF AMERICA, Appellant,
v.
ÁNGEL GABRIEL FERNÁNDEZ-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-VÁZQUEZ, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
v.
EDWIN OTERO-DÍAZ, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
v.
ISAÍAS MENDOZA-ORTEGA, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee,
v.
EDWIN OTERO-MÁRQUEZ, Defendant, Appellant.

          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 Fernández-Jorge.

          Ramón M. González, on brief for appellant Pérez-Torres.

          Humberto Guzmán-Rodríguez and Guzmán & Rodríguez-López Law Office, on brief for appellant De la Cruz-Vázquez.

          Edgar L. Sánchez-Mercado, on brief for appellant Otero-Díaz.

          Juan A. Albino-González, with whom Albino & Assoc. Law Office, PC 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-Márquez.

          Mainon 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 appellee.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         After a 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.[1] 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 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 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.

         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 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.

         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. Fernández-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-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).[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-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.

         Now, 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 liability.

         II. The motions for acquittal

         We 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).

         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 § 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).

         A. The Defendant-Appellants' motions for acquittal on Count Three

         In 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.

         1. ...


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