United States v. Manso-Cepeda , 810 F.3d 846 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2068
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS ÁNGEL MANSO-CEPEDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Hawkins,* and Barron,
Circuit Judges.
Víctor González-Bothwell, Assistant Federal Public Defender,
with whom Eric A. Vos, Federal Public Defender, and Vivianne M.
Marrero-Torres, Assistant Federal Public Defender, were on brief,
for appellant.
Nicholas Warren Cannon, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Carmen M. Márquez-Marín, Assistant United
States Attorney, were on brief, for appellee.
January 20, 2016
* Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Following a jury trial, Luis
Ángel Manso-Cepeda ("Manso") was convicted for aiding and abetting
a convicted felon, Lisander Casillas-Sánchez ("Casillas"), in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
2. He directly appeals the district court's denial of his motion
for acquittal under Rule 29 of the Federal Rules of Criminal
Procedure. He asserts that the evidence was insufficient to
support his conviction in light of the advance knowledge
requirement for aiders and abettors articulated in Rosemond v.
United States, ___ U.S. ___, 134 S. Ct. 1240 (2014). For the
reasons discussed herein, we affirm.
I.
We recite the facts in the light most favorable to the
prosecution. United States v. Ofray-Campos, 534 F.3d 1, 11 (1st
Cir. 2008). At about 11:40 p.m., on the evening of January 26,
2014, Officer Onil Tejeda-Jiménez ("Tejeda") was patrolling in his
police car in the El Hobo and Honduras sectors of Loíza, Puerto
Rico. Sergeant Gadiel Bonilla-Álamo ("Bonilla") sat as a passenger
in Tejeda's car. At that time, Tejeda was accompanied by two other
patrol cars, one of which was driven by Officer José Cruz-Cervera
("Cruz").
Tejeda observed a gray Mazda Protegé (the "Mazda") with
windows that appeared to be tinted beyond the level permitted under
Puerto Rico law traveling in the opposite direction. Tejeda
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attempted to initiate a traffic stop, turning on his vehicle's
rotating lights and sirens and motioning for the vehicle to halt
by sticking his hand out the driver's side window. The Mazda did
not comply, instead passing Tejeda.
When Cruz saw that the Mazda had failed to obey Tejeda,
he turned on his vehicle's rotating lights and moved into the
Mazda's lane to block the car. The Mazda drove onto the sidewalk
to avoid Cruz's vehicle and continued driving away from the patrol
cars. The officers immediately pursued the Mazda, with Cruz
following Tejeda and Bonilla.
The Mazda turned onto another street and briefly stopped
during the chase. Tejeda and Bonilla observed one of the rear
passenger doors open. Tejeda, who was positioned directly behind
the Mazda, observed an individual (later identified as Casillas)
throw a firearm onto the grass alongside the road. The Mazda then
accelerated "[a]s fast as it could" away from Tejeda and Bonilla.
At that moment, Cruz, who was somewhat behind the other two
vehicles, arrived at the scene, and Bonilla signaled for Cruz to
continue following the Mazda.
Tejeda and Bonilla remained at the scene where the Mazda
had stopped. Tejeda retrieved the gun, and "since it [was] quite
large," placed it in the rear seat of his car. At the trial,
expert witness Julio Vélez identified the firearm as a Winchester
1200 pump-action shotgun, which typically has a barrel that is
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between twenty-six and twenty-eight inches. The gun found by
Tejeda had a barrel that had been sawed down to sixteen inches.
The gun was loaded and contained six cartridges.
Meanwhile, Cruz continued his pursuit of the Mazda. The
Mazda eventually stopped, turning into the entrance of a residence.
There, Cruz observed an individual holding a black pistol exit the
front passenger seat and flee into a wooded area. Casillas and
the driver, later identified as Manso, exited the vehicle. Both
men were placed under arrest. At the time, Casillas was wearing
a tee shirt and basketball shorts.
In an interview conducted with Special Agent José Díaz-
Narváez ("Díaz") after his arrest, Manso asserted that no one was
riding in the front passenger seat and that he had stopped in that
neighborhood to pick his wife up from a social gathering. Manso
explained that he did not halt when Tejeda first signaled "because
he wanted to go to a safer place" to stop his car. Cruz and Tejeda
testified that they did not observe Manso's wife at the residence
where he stopped. The jury also heard testimony that, earlier
that same day, Bonilla and Cruz had confronted Casillas and
observed him and Manso with a group of friends at Manso's father's
home.
Manso was indicted for one count of aiding and abetting
a convicted felon in the possession of a firearm under 18 U.S.C.
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§§ 21 and 922(g)(1).2 At trial, the parties stipulated that
Casillas was a convicted felon and therefore a prohibited person
under § 922(g)(1), that Casillas knowingly possessed the
Winchester shotgun loaded with six cartridges in or affecting
interstate commerce, and that the Mazda was registered to Manso's
mother. At the close of the Government's case, Manso moved for a
judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure, which the district court denied from the bench.
Following the two-day trial, the jury found Manso guilty of aiding
and abetting, and Manso was sentenced to fifteen months'
imprisonment and three years' supervised release. Manso filed a
renewed motion for judgment of acquittal, which the district court
denied in a written opinion and order. He appeals that decision
here.
1 18 U.S.C. § 2 is the federal aiding and abetting statute. It
provides, "[w]hoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal." 18 U.S.C. § 2(a).
2 "It shall be unlawful for any person who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce."
18 U.S.C. § 922(g)(1).
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II.
1. Standard of Review
"Challenges to the sufficiency of the evidence are
reviewed de novo." United States v. Rodríguez-Martínez, 778 F.3d
367, 371 (1st Cir. 2015). The evidence is evaluated in the light
most favorable to the verdict. United States v. Santos-Rivera,
726 F.3d 17, 23 (1st Cir. 2013). While the government need not
rule out each "theory consistent with the defendant's
innocence . . . , we must decide whether that evidence, including
all plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime." Id. (quoting United States v. Troy,
583 F.3d 20, 24 (1st Cir. 2009)). The standard of review is
rigorous, and defendants challenging the sufficiency of the
evidence face "an uphill battle." United States v. Seng Tan, 674
F.3d 103, 107 (1st Cir. 2012).
2. Aiding and Abetting under Rosemond
Manso's argument centers on the advance knowledge
requirement articulated in Rosemond, which involved a defendant's
conviction for aiding and abetting a violation of 18 U.S.C.
§ 924(c) during "a drug deal gone bad." Rosemond, 134 S. Ct. at
1243. Section 924(c)(1)(A) provides minimum mandatory sentences
for those "who, during and in relation to any crime of violence or
drug trafficking crime . . . use[] or carr[y] a firearm."
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The Court in Rosemond began with the well-established
premise that "a person 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." Rosemond, 134 S. Ct. at 1245. For
purposes of the intent inquiry, "a person who actively participates
in a criminal scheme knowing its extent and character intends that
scheme's commission." Id. at 1249. Turning to the question of
when an aider and abettor must know that a gun will be used, the
Court clarified that the "defendant's knowledge of a firearm must
be advance knowledge," i.e., "knowledge at a time the accomplice
can do something with it -- most notably, opt to walk away." Id.
at 1249-50. If the gun emerges only when the defendant no longer
has a "realistic opportunity to quit the crime . . . , the defendant
has not shown the requisite intent to assist a crime involving a
gun." Id. at 1249. Yet the Supreme Court noted that, "if a
defendant continues to participate in a crime after a gun was
displayed or used by a confederate, the jury can permissibly infer
from his failure to object or withdraw that he had such knowledge."
Id. at 1250 n.9.
3. Rosemond's Application to Manso
Manso contends that the Government "only succeeded in
establishing that [he] knew something illegal was afoot inside his
vehicle when officer Tejeda attempted to conduct a traffic stop."
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To the contrary, the Government presented evidence that would have
allowed the jury to infer that Manso knew that Casillas possessed
a gun when Casillas first entered the Mazda. First, the firearm
was over a foot long -- so long that Tejeda needed to place it in
the rear seat of his patrol car after he retrieved it. Casillas,
who wore only a tee shirt and shorts, would have had difficulty
concealing a gun of that size. Further, Casillas and Manso had
been observed socializing that same day. The jury may have
reasonably concluded that Manso was not merely giving an
acquaintance a ride, but that he had spent time with Casillas
throughout the evening and may have seen Casillas carrying the gun
before he entered the car. As a result, it is not "unreasonable,
insupportable, or overly speculative" for the jury to infer that
Manso was aware of the gun from the moment Casillas entered his
car. United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)
("Reliance on indirect, as opposed to direct, evidence in a
criminal case is both permissible and commonplace.").
In this way, this case is distinguishable from
Rodríguez-Martínez, where we determined that there was
insufficient evidence to conclude that the defendant aided and
abetted the possession of a firearm in furtherance of a drug-
trafficking crime. We noted that the gun in that case -- a Glock
pistol -- had been hidden in the co-defendant's jacket such that
"the arresting officers saw the gun for the first time when they
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asked [the defendant] to lift his shirt," and we therefore
determined that the government failed to present evidence that
would allow the jury to infer that the defendant ever saw the gun.
Rodríguez-Martínez, 778 F.3d at 373-74. Conversely, in the case
at hand, the Government presented evidence from which the jury
could infer that Manso saw the gun prior to the traffic stop,
namely, the relationship between Manso and Casillas, the gun's
size, and Casillas's attire.
Moreover, Manso's argument that the evidence only
supports the conclusion that he saw the gun when Tejeda attempted
to stop the car fails to acknowledge the Supreme Court's
instructions that a "jury can permissibly infer from [the
defendant's] failure to object or withdraw" once he sees a gun
that he had advance knowledge of the firearm. Rosemond, 134 S.
Ct. at 1250 n.9. As a result, under Rosemond, the jury could have
inferred from Manso's failure to withdraw that he was aware of the
gun before the traffic stop.
In addition, Manso's conduct easily satisfies the
affirmative act requirement as his evasive actions facilitated
Casillas's continued possession of the firearm. See id. at 1246-
47 (describing the affirmative act requirement). Viewing the
evidence in the light most favorable to the jury verdict, we find
that a jury reasonably could have determined that Manso's flight
and subsequent actions aided Casillas in avoiding the police and
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thus concealing his firearm from them. Manso did not simply give
Casillas a ride: he took part in a police chase. Moreover,
Manso's assertion that the evidence only supported a conviction as
an "accessory after the fact" under 18 U.S.C. § 3 is unavailing:
Casillas continued to possess the gun during the first leg of the
chase, and Manso's evasive driving aided his continued violation
of § 922(g)(1) during that time.3
Further, even if we accept Manso's contention that he
only learned of the gun when Tejeda first tried to stop the Mazda,
Manso does not adequately explain why it was too late to withdraw
at that moment. See Rosemond, 134 S. Ct. at 1249-50. Manso
reacted to Tejeda's attempted stop by driving onto a sidewalk and
sparking a high-speed car chase with three patrol cars. It is
unclear why Manso could not have made a different choice, namely,
to pull to the side of the road.4 Manso fails to address why a
3 During oral argument, the Government stated that Manso's conduct
would have supported convictions under 18 U.S.C. §§ 2 and 3. This
assertion is problematic as "[t]he temporal boundary between
principals and aiders and abettors, on one hand, and accessories
after the fact, on the other hand, . . . remains important in
federal criminal law." United States v. Figueroa-Cartagena, 612
F.3d 69, 73 (1st Cir. 2010). That said, Manso's conduct continued
during the crime's commission and persisted after the crime was
arguably complete -- when Casillas relinquished the gun.
Nevertheless, this Court declines to address whether such behavior
could have invited liability under both provisions of the criminal
code.
4 In this way, Manso's behavior is distinguishable from the
situation described by the Supreme Court in which "an accomplice
agrees to participate in a drug deal on the express condition that
no one bring a gun to the place of exchange," but, during the deal,
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reasonable jury could not have determined that, once Tejeda
attempted the traffic stop and Manso became aware of the gun, Manso
could not have effectively "walk[ed] away," id., by simply stopping
his car. Indeed, the jury could have determined that Manso's
purported reasons for failing to stop -- that he preferred to pull
over in a safer area and wanted to pick his wife up from an
event -- were not credible in light of his evasive and potentially
dangerous behavior, including driving onto a sidewalk and
speeding, and the fact that his wife was not present in the
neighborhood where he eventually stopped.5
sees a gun hidden in his accomplice's jacket. Rosemond, 134 S.
Ct. at 1251. The Court explained that the defendant "might
increase the risk of gun violence" by withdrawing in the middle of
the deal and, therefore, "a jury is entitled to find that the
defendant intended only a drug sale" and lacked advance knowledge
of the firearm. Id. Refusing to comply with a policeman's orders
and engaging in a high-speed chase is inconsistent with the Supreme
Court's reasoning here, which touches on concerns that a
defendant's behavior may increase the risk of gun violence. A
jury reasonably could have found that Manso's acts increased --
rather than decreased -- the risk of harm.
5 During oral argument, Manso suggested that, once the act of
possession began, the offense had already commenced and Manso could
no longer have advance knowledge of its elements. Manso failed to
raise this point in his appellate brief, despite having addressed
it before the district court on multiple occasions and expanding
upon it in oral argument. In any event, § 922(g)(1) has no such
temporal element: possession is a continuous violation that "is
generally understood as a course of conduct." United States v.
Benjamin, 711 F.3d 371, 378 (3d Cir. 2013); accord United States
v. Destefano, No. 98-2054, 1999 WL 1319192, at *1 (1st Cir.
Nov. 22, 1999). And although a defendant must "participate[] in
a criminal venture with full knowledge of the circumstances
constituting the charged offense," Rosemond, 134 S. Ct. at 1248-
49, "a defendant can be convicted as an aider and abettor without
proof that he participated in each and every element of the
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4. Jury Instructions
The Court in Rosemond stated that aiding and abetting
jury instructions must "direct the jury to determine when [the
defendant] obtained the requisite knowledge." Rosemond, 134 S.
Ct. at 1251-52. Here, the jury instructions asked the jury to
determine, in relevant part, whether Manso "consciously shared
Mr. Casillas-Sánchez's knowledge that he possessed the shotgun."
On appeal, Manso makes a fleeting reference to the jury
instructions, asserting, in a single sentence, that the jury "was
not directed to determine when Mr. Manso obtained the requisite
knowledge." Manso failed to bring this argument before the
district court, despite the trial judge raising the issue of
Rosemond's directive concerning jury instructions.6 As Manso did
not object below and the issue received only cursory treatment
before this Court, we consider the argument waived. See United
States v. García-Ortiz, 792 F.3d 184, 191 n.9 (1st Cir. 2015) (not
addressing whether jury instructions "did not sufficiently capture
offense," id. at 1246 (quoting United States v. Sigalow, 812 F.2d
783, 785 (2d Cir. 1987)). It follows that a defendant may aid and
abet a convicted felon's possession of a gun under § 922(g)(1)
without contributing to his acquisition of the firearm.
6 When discussing the Rule 29 motion, the district court noted
that "[o]ne of the things highlighted here by [defense counsel] in
the Rosemond case talks about juror instructions." This statement
does not imply that Manso raised an objection to jury instructions
before the district court. Rather, Manso appears to have
highlighted this issue in his discussion of the "advance knowledge"
requirement as it related to the evidence adduced at trial.
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the knowledge requirement" under Rosemond as the issue was "waived
for lack of development").7
III.
The judgment of the district court is affirmed.
Affirmed.
7 Were we to address this issue, we would review the jury
instructions under a plain error standard in light of Manso's
failure to object before the lower court. Fed. R. Crim. P. 52(b).
On plain error review, Manso would need to demonstrate that the
error was "clear or obvious." United States v. García-Torres, 341
F.3d 61, 66 (1st Cir. 2003). Manso would have difficulty making
this showing: the First Circuit already had an advance knowledge
requirement for aiding and abetting convictions prior to Rosemond,
and this Court has consistently used the "consciously shared"
formulation to describe our aiding and abetting law. García-
Ortiz, 792 F.3d at 188-90 (querying whether the defendant
"consciously shared the principal's knowledge"); Spinney, 65 F.3d
at 235 (describing the "consciously shared" inquiry as one of the
"central requirement[s]" of an aiding and abetting violation).
Accordingly, an error in which the district court used a well-
established formulation of unchanged First Circuit law is unlikely
to qualify as plain error. See United States v. Davis, 750 F.3d
1186, 1193-94 (10th Cir. 2014) (finding that the same instruction
"necessarily encompasses the planned use of a firearm" and that
the jury "implicitly found that [the defendant] had advance
knowledge of the firearm").
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