United States v. Hernandez-Roman ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-2133
UNITED STATES OF AMERICA,
Appellee,
v.
JOMAR HERNÁNDEZ-ROMÁN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Jason González-Delgado on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Alexander L. Alum, Assistant United States Attorney,
on brief for appellee.
December 1, 2020
SELYA, Circuit Judge. After a lengthy trial, a jury
convicted defendant-appellant Jomar Hernández-Román of armed bank
robbery and related crimes. Following the imposition of sentence,
the defendant appeals. Concluding, as we do, that he is grasping
at straws, we affirm the judgment below.
I. BACKGROUND
We sketch the relevant facts and travel of the case,
taking those facts in the light most congenial with the verdict.
See, e.g., United States v. Santiago, 83 F.3d 20, 23 (1st Cir.
1996); United States v. Taylor, 54 F.3d 967, 971 (1st Cir. 1995).
On November 29, 2014, three armed individuals robbed a Banco
Popular branch in Bayamón, Puerto Rico, making off with more than
$64,000. In an attempt to distract the authorities, they had
dropped packages containing fake bombs at ATMs outside of two other
banks (one at Lomas Verde and one at Bayamón City Hall).
Toward the end of the next month, the authorities
detained the defendant. While in custody, he stated that on the
day of the robbery, he and a friend ran some errands and went
shopping for some sneakers. But this was not his first shopping
trip: it turned out that four days earlier, he and an alleged
coconspirator, José Padilla-Galarza (Padilla), had gone to two
Party City stores and a Home Depot. In the course of this
excursion, Padilla purchased various artifacts, including black
gloves and fake facial hair, which a jury could reasonably have
- 2 -
concluded were used by the robbers.1 Video surveillance recordings
from the stores' cameras corroborated these purchases.
As the interview progressed, the defendant confessed.
He admitted that he had hosted multiple meetings at his home,
during which the plot to rob the bank was hatched. He also admitted
that he had surveilled the bank on behalf of the conspirators;
that he knew of the scheme to deploy fake bombs to divert the
attention of the authorities; and that, after the robbery, he had
returned a shotgun used by the robbers to Padilla. Another witness
corroborated the fact that planning meetings had taken place at
the defendant's home.
In due season, a federal grand jury sitting in the
District of Puerto Rico returned a five-count indictment that
charged the defendant, Padilla, and three others with conspiracy
to commit bank robbery (count 1), see 18 U.S.C. § 371; armed bank
robbery (count 2), see id. § 2113(a); conspiracy to commit Hobbs
Act robbery (counts 3 and 4), see id. § 1951(a); and using,
carrying or brandishing firearms during and in relation to a crime
of violence (count 5), see id. § 924(c). Three of these five
defendants entered guilty pleas, but the defendant and Padilla
maintained their innocence. After a protracted trial, the jury
1After the robbery, the authorities recovered a matching pair
of black gloves and fake facial hair when executing a search
warrant at Padilla's residence.
- 3 -
found the defendant guilty on all counts.2 The district court
sentenced him to serve an eighty-seven-month term of immurement.
This timely appeal followed.
II. ANALYSIS
In this venue, the defendant advances what can be grouped
as two claims of error. We address them sequentially.
A. Sufficiency-of-the-Evidence Claims.
At the close of the government's case in chief, the
defendant moved for judgment of acquittal. See Fed. R. Crim. P.
29(a). He argued that the government had failed to establish the
interstate nexus required for the first four counts of the
indictment and, in addition, had failed to prove that he "actually
possessed a firearm during and in relation to a crime of violence."
The district court denied his motion.
The defendant did not renew his motion for judgment of
acquittal at the close of all the evidence. See id. Nor did he
move for judgment of acquittal following the jury's verdict. See
Fed. R. Crim. P. 29(c)(1).
Before us, he attempts to launch a broad-gauged series
of sufficiency-of-the-evidence claims. Specifically, he submits
that the government failed to prove either that he possessed the
requisite criminal intent or that he was physically present during
2 The jury also found Padilla guilty on all counts, and his
appeal is pending.
- 4 -
the commission of any crimes of violence. This attempt is doomed.
The denial of a Rule 29(a) motion, without more, does not preserve
an issue for appeal. See United States v. Maldonado-García, 446
F.3d 227, 230 (1st Cir. 2006); United States v. Hadfield, 918 F.2d
987, 996 (1st Cir. 1990). Here, there was no "more": the
defendant's failure to move for judgment of acquittal either at
the close of all the evidence or after the verdict was returned
results in a waiver. See Maldonado-García, 446 F.3d at 230. Given
the absence of a timely Rule 29 (b) or (c) motion, an appellate
court may not intercede except to prevent a clear or gross
injustice. See United States v. Tkhilaishvili, 926 F.3d 1, 18
(1st Cir. 2019); Taylor, 54 F.3d at 975.
There is no hint of any clear or gross injustice here.
After all, it is common ground that there can be no clear and gross
injustice if the evidence, scrutinized in the light most congenial
with the verdict, can support a finding of guilt beyond a
reasonable doubt. See Taylor, 54 F.3d at 974. The evidence in
this case easily clears so low a bar. We explain briefly.
To sustain a conviction for conspiracy under 18 U.S.C.
§ 371, "the government must furnish sufficient evidence of three
essential elements: an agreement, the unlawful objective of the
agreement, and an overt act in furtherance of the agreement."
United States v. Hurley, 957 F.2d 1, 4 (1st Cir. 1992). So, too,
the government must furnish sufficient evidence of "the knowing
- 5 -
participation of each defendant in [the] conspiracy." United
States v. Mubayyid, 658 F.3d 35, 57 (1st Cir. 2011). The
government's proof may be either direct or circumstantial. See
United States v. Floyd, 740 F.3d 22, 28 (1st Cir. 2014); United
States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002).
In the case at hand, the defendant admitted to hosting
meetings at his home, during which the robbery was planned. He
also admitted that he participated in surveilling the bank and
that he delivered a shotgun that had been used in the robbery to
one of his confederates. What is more, he admitted that he knew
about the scheme to deploy fake bombs — and he even supplied the
authorities with a diagram of the fake bombs. To cinch the matter,
another of the charged coconspirators (Miguel Torres-Santiago)
provided testimony that directly implicated the defendant as a
member of the conspiracy. Assaying this evidence in light of the
government-friendly standard of review, it was more than
sufficient to sustain the defendant's conviction as to count one.
Nor need we linger long over the defendant's importuning
that the evidence was insufficient as to count two because he
"simply did not participate in the bank robbery." The statute of
conviction provides, in relevant part, that "[w]hoever, by force
and violence, or by intimidation, takes, or attempts to take,
. . . any property or money or any other thing of value belonging
to . . . any bank," and who, in committing or attempting to commit
- 6 -
such an offense, "assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous weapon or device,"
commits the offense of armed bank robbery. 18 U.S.C. § 2113(a),
(d). At first blush, the evidence of each of these elements seems
ample.
The defendant demurs, saying that he did not participate
in the robbery and that "none of the government witnesses who
participated in this robbery could put [him] inside the bank."
But the defendant is setting up a straw man: to convict the
defendant under count two, the government was under no obligation
to prove that he was physically present at the scene of the
robbery. To the contrary, it is well-established that, by virtue
of the jury's guilty verdict as to the conspiracy charged in count
one, the defendant became substantively liable for the foreseeable
acts of his coconspirators in furtherance of the conspiracy —
including, in this case, the armed bank robbery. See Pinkerton v.
United States, 328 U.S. 640, 647 (1946). As we have said, "a
Pinkerton instruction exposes a coconspirator to criminal
liability for the substantive crimes committed in the course of
the conspiracy, regardless of whether he or some other
coconspirator actually perpetrated the crimes." United States v.
Torres, 162 F.3d 6, 10 (1st Cir. 1998). Consequently, the
defendant need not have been physically present inside the bank
- 7 -
(or for that matter, in the vicinity of the robbery) in order to
be guilty of the substantive crime of armed bank robbery. See id.Seen in this light, it is nose-on-the-face plain that
the evidence was sufficient to enable a rational jury to conclude
beyond a reasonable doubt that the defendant was a member of the
bank-robbery conspiracy and, thus, liable for the substantive
armed bank robbery charge. His own words are telling: he admitted
to conducting surveillance to facilitate the robbery, to handling
a shotgun used in the robbery, and to accompanying Padilla while
he acquired disguises worn by the robbers. From the defendant's
admissions and other evidence in the record, a rational jury could
find without difficulty that the defendant had acted in furtherance
of a foreseeable robbery. See United States v. Hurley, 63 F.3d 1,
22 (1st Cir. 1995).
The defendant also tries to attack his Hobbs Act
convictions. As relevant here, the Hobbs Act proscribes conduct
that "in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by robbery
or extortion or attempts or conspires so to do." 18 U.S.C.
§ 1951(a). Thus, the government was required to prove beyond a
reasonable doubt both that the defendant conspired and attempted
to commit robbery and that the conspiracy's actions affected
interstate or international commerce. See Tkhilaishvili, 926 F.3d
at 10.
- 8 -
The defendant's challenge to his Hobbs Act robbery
convictions falter for reasons similar to those that undermined
his challenge to his bank robbery convictions. To be sure, the
defendant asserts that the evidence fails to establish any actus
reus on his part to employ "actual or threatened force, or
violence," as required by the Hobbs Act.3 18 U.S.C. § 1951(b)(1).
This assertion, though, misses the mark. Upon the jury's finding
that the defendant was a member of the bank-robbery conspiracy, he
became subject to liability for the commission of the substantive
offense which — under a Pinkerton theory of liability — he could
have been held to have reasonably foreseen. See Torres, 162 F.3d
at 10.
This leaves the firearms count (count 5). The defendant
asserts that no rational jury could have found him guilty of
violating 18 U.S.C. § 924(c) because he did not physically possess
any firearms during the robbery. Once again, the defendant is
aiming at the wrong target.
We have held that where, as here, Pinkerton liability is
in play, "the defendant does not need to have carried the gun
3
On appeal, the defendant has abandoned the argument —
originally advanced in his Rule 29(a) motion — that the government
failed to prove a sufficient nexus with interstate commerce. And
at any rate, the bank that the conspiracy targeted was federally
insured, so a sufficient nexus with interstate commerce plainly
existed. See United States v. Benjamin, 252 F.3d 1, 9 (1st Cir.
2001) (holding that proof of federal insurance suffices to
establish "at least a minimal impact on interstate commerce").
- 9 -
himself to be liable under section 924(c)." United States v.
Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir. 2004). Although the
defendant may not have handled a firearm during the course of the
robbery, the evidence makes manifest that he knew that firearms
would be used at that juncture. Consequently, a rational jury
could find — as this jury did — that the defendant was guilty of
the firearms charge.
That ends this aspect of the matter. Given the evidence
of record and the reasonable inferences therefrom, we are satisfied
that nothing resembling a clear and gross injustice mars the
defendant's convictions.
B. Claims Specific to the Firearms Offense.
The defendant has another shot in his sling. Section
924(c) provides, in relevant part, that "any person who, during
and in relation to any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a
firearm, shall . . . be [punished as provided]." 18 U.S.C.
§ 924(c)(3). Section 924(c)(3) then furnishes alternate
definitions for the term "crime of violence": a felony that "(A)
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another," (the
force clause) or "(B) that by its nature, involves a substantial
risk that physical force against the person or property of another
may be used in the course of committing the offense" (the residual
- 10 -
clause). Id.; see King v. United States, 965 F.3d 60, 64-65 (1st
Cir. 2020).
In this instance, the defendant first challenges his
conviction on the firearms count on the ground that the residual
clause contained in the statutory "crime of violence" definition
is unconstitutionally vague. In support, he notes that the Supreme
Court has invalidated the residual clause of the Armed Career
Criminal Act (ACCA), see Johnson v. United States, 576 U.S. 591,
596-97 (2015), and the residual clause contained in a section of
the Immigration and Nationalization Act (INA), see Sessions v.
Dimaya, 138 S. Ct. 1204, 1216 (2018), as unconstitutionally vague.
The defendant posits that section 924(c)'s residual
clause, which mimics the residual clauses of the ACCA and the INA,
is also unconstitutionally vague in light of Johnson and Dimaya.
The government counters that the defendant was convicted on all of
the charged counts and that several of those counts involved
predicate offenses (specifically, armed bank robbery and Hobbs Act
robbery) that qualify as crimes of violence under section 924(c)'s
force clause. Given this circumstance, the government says, the
defendant's conviction on the firearms count is unimpugnable.
Because the defendant advances this claim of error for
the first time on appeal, our review is for plain error. See
United States v. Duarte, 246 F.3d 56, 57 (1st Cir. 2001). Plain
error review demands four showings: "(1) that an error occurred
- 11 -
(2) which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Id. at 60. The proponent of plain error "must carry
the devoir of persuasion as to each of these four components."
United States v. Kilmartin, 944 F.3d 315, 330 (1st Cir. 2019).
We recently had occasion to confront a nearly identical
claim of error. See United States v. García-Ortiz, 904 F.3d 102,
105-07 (1st Cir. 2018). On that occasion, we held that any
conceivable infirmity in the residual clause of section 924(c)
offered the defendant no avenue for relief when the predicate
offense qualified as a crime of violence under one of the other
clauses of the statutory definition. See id. at 106 (finding that
Hobbs Act robbery constituted crime of violence within the purview
of section 924(c)'s force clause).
For present purposes, we assume — as the defendant posits
— that the residual clause of section 924(c) is unconstitutionally
vague. See Johnson, 576 U.S. 596-97. Nevertheless, both Hobbs
Act robbery and armed bank robbery qualify as crimes of violence
under the force clause of section 924(c). See García-Ortiz, 904
F.3d at 107 (Hobbs Act robbery); Hunter v. United States, 873 F.3d
388, 390 (1st Cir. 2017) (armed bank robbery). As a result, any
constitutional shortcoming in section 924(c)'s residual clause
does not cast doubt upon the defendant's section 924(c) conviction.
- 12 -
In a variation on this theme, the defendant claims that
he is entitled to a new trial because the jury did not make a
specific finding as to which of the first four counts comprised
the predicate offense for the count five firearms conviction. This
claim was not raised below and, thus, engenders plain error review.
See Duarte, 246 F.3d at 57.
The Second Circuit has squarely addressed such a claim.
It affirmed a section 924(c) conviction, holding that "[b]ecause
the jury validly reached a unanimous guilty verdict on every
predicate crime alleged," any error in the jury instructions "was
necessarily harmless." United States v. Gomez, 580 F.3d 94, 103-
04 (2d Cir. 2009). Accordingly, the instruction — even if
erroneous — did not affect the defendant's substantial rights.
See id. at 104.
So it is here. The jury found the defendant guilty of
two counts relating to armed bank robbery and two counts relating
to Hobbs Act robbery — all of which qualify as crimes of violence
under section 924(c). It follows inexorably that, even though it
may have been error for the district court not to have required
the jury to reach consensus on a single predicate offense — a
matter on which we take no view — any such error was harmless (and,
thus, not plain).
In a final jeremiad, the defendant implores us to reverse
his firearms conviction because section 924(c) is a "rotten
- 13 -
statutory disposition," which he regards as "unduly unfair and
inconsistently applied." This pejorative claim is entirely
undeveloped, and we have held before that "issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). This is a paradigmatic example of
such a case.
III. CONCLUSION
We need go no further. For ought that appears, the
defendant was fairly tried and justly convicted. The judgment
below is, therefore,
Affirmed.
- 14 -