United States v. Santos Centeno ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-2024
_____________
UNITED STATES OF AMERICA
v.
BALDWIN CENTENO,
Appellant
____________
No. 14-2690
_____________
UNITED STATES OF AMERICA
v.
SANTOS CENTENO
a/k/a
HECTOR CRUZ,
Santos Centeno,
Appellant
__________________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
(D.C. Nos. 2-12-cr-00634-001, 2-12-cr-00634-002)
District Judge: Honorable Juan R. Sanchez
______________________
Argued: June 3, 2015
____________________
Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.
(Filed: July 14, 2015)
Brett G. Sweitzer, Esq. [ARGUED]
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19016
Counsel for Appellant (No. 14-2024)
Elizabeth Plasser Kelly, Esq. [ARGUED]
256 Eagleview Boulevard
P.O. Box 155
Exton, PA 19341
Counsel for Appellant (No. 14-2690)
2
Denise S. Wolf, Esq. [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________________
OPINION
______________________
SHWARTZ, Circuit Judge.
Baldwin and Santos Centeno appeal their convictions
and sentences arising from violent assaults at the
Independence National Historical Park in Philadelphia.1 Each
challenges the sufficiency of the evidence supporting his
convictions. In addition, Baldwin argues that his conviction
must be reversed due to a constructive amendment of the
Indictment and, in any event, that his sentence must be
vacated due to the District Court’s failure to personally
address him before imposing its sentence. Finally, each
contends that one conviction violates the Double Jeopardy
Clause and must be vacated. We conclude that the evidence
is sufficient to support the convictions but, with respect to
Baldwin, the Government’s rebuttal summation advocated a
1
For convenience, we will refer to each defendant by
his first name.
3
basis for conviction that was not charged in the Indictment
and resulted in a constructive amendment, requiring that we
vacate his convictions and remand for a new trial. As to
Santos, we agree with the parties that one of his assault
convictions violated the Double Jeopardy Clause so we will
vacate that single conviction and remand for resentencing.
I
The charges arise from incidents that occurred on June
16 and 20, 2012. Around 1:00 a.m. on June 16, 2012, Ashish
Lokhande was found lying in a pool of blood on the sidewalk
in Independence National Historical Park. Lokhande could
not recall being assaulted or ever seeing either Baldwin or
Santos. He remembered only having been to work that day
and waking up in the hospital days later. Lokhande testified
that his “normal routine” for a Friday evening was to drive his
car into Philadelphia to go salsa dancing and that he typically
parked his car around Fifth and Market Streets, near
Independence National Historical Park.
Christopher Robles was with Baldwin and Santos on
the night of the assault. Robles testified that he, Baldwin, and
Santos drove from Santos’s apartment in Camden, New
Jersey into Philadelphia, using Baldwin’s four-door sedan
with a black hood that did not match the color of the rest of
the car. After they parked, Santos and Baldwin exited the car
and Robles remained in the backseat.2
2
Robles testified that he stayed in the car because he
was too “drunk” to walk. App. 446.
4
Shortly thereafter, three men joined Baldwin and
Santos. Robles testified that Baldwin and Santos leaned
against the car while the three men paced back and forth
along the sidewalk. The group talked, drank, and laughed.
Eventually, a man approached Baldwin and Santos and asked
if they could help him locate his car.3 Robles testified that he
then saw the man “being attacked,” App. 431, which included
being hit and punched.
Robles testified that Baldwin and Santos were
“around” the victim, App. 432, 435, and were “in the group of
five that attacked” him, App. 444. Robles further admitted
that “any” or “all” “of [the] five men” could have attacked the
victim, that he did not see who struck him, App. 443-44, and
that he could not say whether Baldwin or Santos were
“looking or hitting,” App. 508-09.
After the attack, Baldwin, Santos, and the three other
men yelled “let’s go” and quickly “ran” to Baldwin’s car.
App. 448, 451, 455. As they drove away, Robles saw the
victim lying on the ground, bleeding. Video surveillance tape
from a nearby building showed a gold or tan Ford Taurus
with a black hood leaving the scene of the assault at
approximately 12:50 a.m. on June 16, 2012. According to
Robles, Baldwin drove the car back to Camden. Cell tower
records showed that Lokhande’s cell phone was in Camden
hours later.
About two hours before the assault, Lokhande’s car
3
was towed from a parking spot near where Lokhande was
found.
5
Four days later, on June 20, 2012, Santos and Baldwin
returned to Independence National Historical Park and
encountered Joseph Crumbock and his wife, D.W. Around
10:15 p.m., Crumbock and D.W. were walking in the same
location where Lokhande had been assaulted. Crumbock and
his wife saw “four guys standing around [a] car,” App. 515,
“just staring [them] down,” App. 559. After they walked
approximately ten to fifteen feet past the men, Santos “came
running at” Crumbock, App. 517, “calling [him] names,” and
pushing and punching him. App. 518. Crumbock testified
that the other three men came over and “surrounded” him and
that “two of them jumped on [his] back” and “punched [him]
in the face.” App. 519-20. Crumbock’s cell phone and wallet
were stolen during the attack.
While on the ground, Crumbock saw Santos “standing
over” D.W., who “was screaming on the ground.” App. 520.
Crumbock recalled that his wife’s face “was all bloody” and
that she was “crying and screaming,” App. 521, as Santos
attempted to “drag[] her across the sidewalk” using the strap
on her pocketbook, App. 524-25. D.W. testified that she fell
to the ground after Santos punched her in the mouth.4
A U.S. Park Ranger heard D.W.’s screams, exited his
station, and saw “a man dragging a woman . . . in the middle
of [the] Street.” App. 651. He yelled “stop, police,” and ran
after the man, App. 652, who “got into the rear passenger”
4
Crumbock identified Santos both in a photo array and
during trial as the man who attacked him and D.W. Because
of a suppression ruling, D.W. did not make an in-court
identification, but the Government published to the jury the
photo array indicating D.W. identified Santos as her attacker.
6
side of a gold or tan four-door 2003 Ford Taurus with a black
hood later determined to be registered to the mother of
Baldwin’s child, App. 652, 656, 710-11, 716-18.5 Two days
later, law enforcement stopped the car in Camden with
Baldwin, Santos, and Robles inside.
A grand jury returned a five-count Indictment against
the Centenos. For the June 16, 2012 incident, the Indictment
charged the Centenos with: (1) knowingly assaulting, and
aiding and abetting assault, “resulting in serious bodily
injury” to Lokhande in violation of 18 U.S.C. §§ 113(a)(6), 2
(Count One); (2) knowingly assaulting, and aiding and
abetting assault, by “striking, beating or wounding” Lokhande
in violation of 18 U.S.C. §§ 113(a)(4), 2 (Count Two); and
(3) knowingly taking, and aiding and abetting the taking of,
property belonging to Lokhande by force and violence and
intimidation in violation of 18 U.S.C. §§ 2111, 2 (Count
Three). App. 30-32. As to the June 20, 2012 incident, the
5
Around this time, Chelsea Schmotzer was sitting in
the driver’s seat of her parked car at an intersection near
Independence National Historical Park. Schmotzer testified
that she saw a gold car pull up behind her and four men exit
the car. The men “split up” in different directions, App. 583-
84, and, approximately ten to twenty minutes later, Schmotzer
heard a woman “screaming for help, clearly very distressed,”
App. 584-85. Schmotzer then saw the men “running towards
[her] car” and one of the men, whom she identified as
Baldwin, ran “right by” her side mirror. App. 585-86.
Schmotzer also testified that she made eye contact with
Baldwin and that he resembled one of the men who exited the
gold car minutes earlier.
7
Indictment charged the Centenos with: (1) knowingly
assaulting, and aiding and abetting assault, “by striking,
beating [or] wounding” Crumbock and D.W. in violation of
18 U.S.C. §§ 113(a)(4), 2 (Count Four); and (2) taking, and
aiding and abetting the taking of, property belonging to
Crumbock and D.W. “by force and violence[, or] by
intimidation” in violation of 18 U.S.C. §§ 2111, 2 (Count
Five). App. 33-34.
The Centenos proceeded to trial. In his summation,
Baldwin’s counsel argued that there was no evidence that
Baldwin actually assaulted Lokhande, or that he was even
“driving the car that night.” App. 908. His counsel also
argued that “get[ting] in your car” and “leaving quickly” do
not constitute aiding and abetting. App. 913. In its rebuttal
summation, the Government told the jury:
Defense counsel mentioned aiding and abetting,
the Judge is going to instruct you on the law on
this point. You can still be guilty if you don’t
throw a punch. Not the first punch, second
punch, it doesn’t matter if you never touch the
guy, you can still be guilty as long as you’re
supporting and participating in some way. You
cannot be part of a group that commits a crime
and then say I didn’t touch him; not me. That’s
not how the law works.
So . . . any one of these points I’m about to go
over, you can find [Baldwin] guilty. . . . [Y]ou
can find him guilty because he was part of [the]
group that knowingly, physically went around
8
Mr. Lokhande . . . if he’s around that group
preventing a victim from escaping, that’s guilty.
If he was part of a group – if his physical
presence was supporting the other assailants,
that is guilty.
If he was a getaway driver, driving his car away
from a crime scene after the victim fell to the
ground and he knowingly is driving the car, that
alone, he’s guilty, any one of these.
App. 920.
Defense counsel immediately objected, contending
that the Government’s comments amounted to an “accessory
after the fact” theory that had not been charged in the
Indictment. App. 923. The District Court overruled the
objection, but informed defense counsel: “[I]f you want a
specific curative instruction I will be happy to do that if you
propose language.” App. 924. Defense counsel suggested: “I
just figure the jury should know that unless there’s evidence
that the car was used in the assault, like he drove it into the
victim or something like that, there’s – getting in the car and
leaving the scene is . . . [in]sufficient to show aiding and
abetting, robbery, and assault.” App. 929. The District Court
rejected defense counsel’s suggested instruction, stating “I
think the model jury instruction that I’m giving as
supplemented with your request, adequately addresses both
side’s concern.” App. 929. It instructed the jurors as follows
with respect to aiding and abetting:
9
In order to find a defendant guilty of an offense
because he aided and abetted the principal in
committing that offense, you must find that the
[G]overnment proved beyond a reasonable
doubt each of the following four elements: One,
that [t]he principal committed the offense
charged by committing each of the elements of
the offenses charged, as I have explained those
elements to you in my instructions. The
principal need not have been charged with, or
found guilty of, the offense, however, as long as
you find that the [G]overnment proved beyond
a reasonable doubt that he committed the
offense. Second, that the defendant knew that
the offense charged was going to be committed
or was being committed by the principal. Third,
that the defendant knowingly did some act for
the purpose of aiding, assisting, soliciting,
facilitating, or encouraging the principal in
committing the specific offense charged and
with the intent that the principal commit that
specific offense. And fourth, that the
defendants did in some way aid, assist,
facilitate, or encourage the principal to commit
the offense. The defendant’s acts need not
themselves be against the law.
. . . [E]vidence that the defendant merely
associated with persons involved in a criminal
venture, or was merely present, or was merely a
knowing spectator during the commission of the
offense is not enough for you to find him guilty
as an aider and abettor. An individual has no
10
legal obligation or duty to report a crime he
witnesses.
. . . The [G]overnment must prove, beyond a
reasonable doubt, that the defendant in some
way participated in the offense committed by
the principal as something that the defendant
wished to bring about and to make succeed.
App. 962-64.
Before excusing the jurors for deliberation, the District
Court provided the following limiting instruction concerning
the similarities between the June 16 and June 20, 2012
incidents:
Now, you have heard testimony that the
defendants participated in assaults and robberies
on June 16th and June 20th. In determining
whether a defendant committed the offense
charged on one of the nights in question, you
may consider evidence regarding the events on
the other night in question for the limited
purpose of deciding whether a defendant: (1)
acted with a method of operation as evidenced
by a unique pattern or did not commit the acts
for which he is on trial by accident or mistake
or is the person who committed the crime
charged in the indictment. Of course, it is for
you to determine whether you believe this
evidence, and if you believe it, whether you
accept it for those purposes I have just
mentioned. You may give it such weight as you
11
feel it deserves to receive, but only for the
limited purpose that I described to you.
For example, you may not conclude that simply
because a defendant committed certain acts on
June 16th, he must also have committed certain
acts on June 20th and vice versa. You must still
determine whether there is proof beyond a
reasonable doubt that the defendants committed
each charged offense on June 16th and each
charged offense on June 20th. Similarly, you
may not consider evidence of acts committed on
one night as evidence of a defendant’s bad
character or propensity to commit the crimes
charged on the other night. . . .
App. 951-52.6
Baldwin was convicted of the two assault charges
related to the June 16, 2012 incident but was acquitted of the
robbery charge related to the June 16, 2012 incident and all
charges related to the June 20, 2012 incident. Santos was
convicted of all assault charges and the June 20, 2012 robbery
but was acquitted of the June 16, 2012 robbery.
During Baldwin’s sentencing hearing, the District
Court asked Baldwin’s counsel: “Does your client wish to
speak to the court?” App. 1102-03. Baldwin’s counsel
answered “No,” and the District Court responded, “He has a
right to speak to the court. He doesn’t want to speak to the
court?” App. 1103. Baldwin’s counsel answered, “Not at
6
The parties consented to this limiting instruction.
12
this time, Your Honor.” Id. The District Court did not
directly address Baldwin. Baldwin received a sentence of
fifty-seven months’ imprisonment. Santos received a
sentence of 188 months’ imprisonment. Both appeal their
convictions and sentences.
II7
A
The Centenos challenge the sufficiency of the evidence
supporting their convictions. In reviewing this claim, we ask
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 424-25 (3d Cir. 2013) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This is a
“particularly deferential standard of review.” United States v.
Dent, 149 F.3d 180, 187 (3d Cir. 1998). “We do not weigh
evidence or determine the credibility of witnesses. . . .”
United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003)
(internal quotation marks omitted). Rather, we view the
evidence as a whole and “ask whether it is strong enough for
a rational trier of fact to find guilt beyond a reasonable
doubt.” Caraballo-Rodriguez, 726 F.3d at 430 (internal
quotation marks omitted). Thus, “a reviewing court faced
with a record of historical facts that supports conflicting
inferences must presume—even if it does not affirmatively
7
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
13
appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that
resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010)
(per curiam) (internal quotation marks omitted).
We will first review the elements of the offenses and
then examine the record to see if there is evidence from which
a rational juror could find that the elements were proven.
Each defendant was convicted of assault in violation of 18
U.S.C. §§ 113(a)(6) and (a)(4), and 2. To prove assault
resulting in serious bodily injury in violation of § 113(a)(6),
the Government must prove: (1) the defendant assaulted
another person; (2) the assault caused the other person to
suffer serious bodily injury; and (3) the assault took place
within the special maritime and territorial jurisdiction of the
United States.8 18 U.S.C. § 113(a)(6). To prove assault “by
striking, beating, or wounding” in violation of § 113(a)(4),
the Government must prove that, while within the special
8
Two appellate courts have indicated that a violation
of § 113(a)(6) also requires proof that the assault occurred by
“intentionally striking” the victim. United States v. Davis,
726 F.3d 357, 360 (2d Cir. 2013); United States v. Felix, 996
F.2d 203, 207 (8th Cir. 1993) (holding that the difference
between what is now designated as § 113(a)(4) and (a)(6) is
the degree of injury that results from the assault, suggesting
striking is an element of both offenses). But see, e.g., United
States v. Bruce, 458 F.3d 1157, 1162 n.1 (10th Cir. 2006)
(stating that assault resulting in serious bodily injury does not
require proof of physical touching). We need not resolve
whether striking is an element because the jury was instructed
that it was and the evidence shows that Lokhande, Crumbock,
and D.W. were struck.
14
maritime and territorial jurisdiction of the United States, the
defendant assaulted the victim while making “some form of
physical contact.” United States v. Herron, 539 F.3d 881, 886
(8th Cir. 2008); see also United States v. Bruce, 458 F.3d
1157, 1162 n.1 (10th Cir. 2006) (stating that assault by
striking requires physical touching).
With respect to “aiding and abetting” under 18 U.S.C.
§ 2, the Government must prove: “(1) that another committed
a substantive offense; and (2) the one charged with aiding and
abetting knew of the commission of the substantive offense
and acted to facilitate it.” United States v. Mercado, 610 F.3d
841, 846 (3d Cir. 2010). Additionally, we require proof that
the defendant had the specific intent to facilitate the crime.
Id. “One can aid or abet another through use of words or
actions to promote the success of the illegal venture.” Id.Indeed, “only some affirmative participation which at least
encourages the principal offender to commit the offense” is
required. United States v. Frorup, 963 F.2d 41, 43 (3d Cir.
1992) (internal quotation marks omitted). There must,
however, be “more than associat[ion] with individuals
involved in the criminal venture.” United States v. Soto, 539
F.3d 191, 194 (3d Cir. 2008) (internal quotation marks
omitted). “Neither mere presence at the scene of the crime
nor mere knowledge of the crime is sufficient to support a
conviction.” Mercado, 610 F.3d at 846. A defendant is not
guilty of aiding and abetting an offense unless the defendant
“did something to forward the crime and . . . was a participant
rather than merely a knowing spectator.” United States v.
Dixon, 658 F.2d 181, 189 (3d Cir. 1981) (parentheses and
internal quotation marks omitted); see also Rosemond v.
United States, 134 S. Ct. 1240, 1248 (2014) (“To aid and abet
a crime, a defendant must not just in some sort associate
15
himself with the venture, but also participate in it as in
something that he wishes to bring about and seek by his
action to make it succeed.” (internal quotation marks
omitted)).
Turning to the events of June 16, there is no dispute
that Lokhande was assaulted by striking on property within
the special territorial jurisdiction of the United States and that
he sustained serious injuries. The only issue is whether there
was sufficient evidence from which a rational juror could find
that the Centenos aided and abetted the assault. We conclude
that, when the Centenos’ actions before, during and after the
assault are viewed in a light most favorable to the
Government, the evidence is sufficient to sustain their
convictions.
Robles testified that the Centenos drove to
Philadelphia, exited the car, and were met by three other men
with whom they were friendly. While they socialized,
Lokhande approached the Centenos and asked them for help
locating his car, after which Lokhande was immediately
attacked. This suggests that the Centenos were closer to
Lokhande than the other men when the attack began. Robles
did not say who punched Lokhande nor did he say that the
Centenos helped the victim. Rather, he testified that Baldwin
and Santos were “around” Lokhande during the attack, App.
432, and they were “part of” the five-man group that attacked
him. App. 448. From this, a rational juror could infer at a
minimum that their physical presence was intimidating,
prohibited the victim’s escape, or encouraged their friends to
proceed in the assault and thus they were involved in the
attack. Cf. United States v. Barber, 429 F.2d 1394, 1396–97
(3d Cir. 1970) (reversing defendant’s aiding-and-abetting-
16
assault conviction where evidence suggested only that
defendant was part of the 15-man group that confronted the
FBI agents “before the outbreak of violence” and did not
indicate whether defendant was acquainted with the other
group members beforehand).
The Centenos’ conduct following the attack further
supports a reasonable inference that they were participants.
The Centenos fled the scene in the same car with the other
three men immediately after the attack, and there is no
evidence that they objected to the other three men leaving
with them in Baldwin’s car. Such flight with the other actors
could reasonably be viewed as evidence of both approval of
the conduct and consciousness of guilt. United States v.
Green, 25 F.3d 206, 210 (3d Cir. 1994); Barber, 429 F.2d at1397 n.4 (observing that “[f]light from the scene of the crime
with the actual perpetrators has been said to justify” an
inference of “participation in the wrongdoing”). Cell phone
records also showed that Lokhande’s cell phone was near the
Centenos’ home in Camden hours after the attack, a fact a
rational juror might find evinces the Centenos’ participation
in the assault.
Lastly, four days later, the Centenos traveled together
in the same car to approximately the same location, where
Santos assaulted and robbed Crumbock and D.W., and
Baldwin was observed fleeing from the area of the assault.
From this evidence, a rational juror could find that the
Centenos “acted with a method of operation as evidenced by
a unique pattern” App. 952, and that it was less likely the
Centenos were “merely . . . knowing spectator[s]” on June
17
16.9 Dixon, 658 F.2d at 189 (internal quotation marks
omitted).
Taken together under our “highly deferential” standard
of review, Caraballo-Rodriguez, 726 F.3d at 430, these facts
provide a basis for a rational juror to conclude that the
Centenos were involved in the attack. See generally
Mercado, 610 F.3d at 846 (reiterating that “[a]n aiding and
abetting conviction can be supported solely with
circumstantial evidence as long as there is a logical and
convincing connection between the facts established and the
conclusion inferred” (internal quotation marks omitted)).
Therefore, there is sufficient evidence to support their
convictions on Counts One and Two.
We next examine the sufficiency of the evidence
supporting Santos’s convictions arising from the June 20,
2012 assault by striking (Count Four) and robbery (Count
Five). Again, there is no dispute that an assault and robbery
occurred within the special territorial jurisdiction of the
United States. The only issue is whether there is sufficient
evidence to support the jury’s verdict that Santos played a
9
Baldwin “affirmatively challenges the Rule 404(b)”
ruling only should the Court “view the June 20 evidence as
integral to any conclusion that the evidence was sufficient as
to” June 16, see Baldwin Br. 33 & 34 n.13, but neither he nor
Santos raises a Fed. R. Evid. 404(b) violation as among the
issues in this appeal, see id. at 3; Santos Br. 3. Because these
issues were “not squarely argued” and were at most “raised in
passing (such as, in a footnote),” they are waived. See John
Wyeth & Brother Ltd. v. Cigna Int’l Corp., 119 F. 3d 1070,
1076 n.6 (3d Cir. 1997).
18
role in these events. We conclude the evidence is sufficient.
Crumbock and D.W. described the June 20 events in detail
and identified Santos as their attacker either on the witness
stand, in a photo array, or both. D.W. specifically testified
that Santos punched her, and Crumbock testified that Santos
punched him and “dragg[ed] [D.W.] across the sidewalk”
using the strap of her pocketbook. App. 524. A U.S. Park
Ranger saw the man who dragged D.W. into the middle of the
street, enter the rear passenger side of a car later shown to be
registered to the mother of Baldwin’s child. Crumbock
described the getaway car as an older model four-door car
with a roof of a different color than the rest of the car, a
description largely consistent with the gold four-door 2003
Ford Taurus with a black hood in which the Centenos were
found two days later. Thus, the evidence against Santos,
viewed as a whole in the light most favorable to the
Government, was “strong enough for a rational trier of fact to
find guilt beyond a reasonable doubt.” Caraballo-Rodriguez,
726 F.3d at 430 (internal quotation marks omitted).
Crumbock also testified that his wallet and cell phone
were stolen. Santos makes no specific argument as to his
robbery conviction. He pins his entire sufficiency challenge
on D.W.’s apparently erroneous description of her assailant as
having a lazy eye, and on Crumbock’s description of the
getaway car as “maybe like a Lincoln, I’m not sure” and his
statement that he “believe[d]” it was the car’s roof that had a
different color than the rest of the car (as opposed to the
hood). App. 526. The jury’s verdict demonstrates that it did
not find these minor differences consequential, which is
wholly rational in light of Crumbock and D.W.’s
identification of Santos as the assailant, the U.S. Park
Ranger’s corroborative testimony about the man he saw
19
“drag[] a woman” in the street, App. 651, and escape in a car
registered to the mother of Baldwin’s child, Schmotzer’s
testimony that she heard a woman scream and saw Baldwin
running in the street after having seen several men get out of
a gold car ten to twenty minutes earlier, and the fact that the
Centenos and Robles were found in the same car two days
after the assault. For these reasons, the evidence is sufficient
to sustain Santos’s convictions on Counts Four and Five and
we will affirm his conviction on these counts.
B
We next address Baldwin’s constructive amendment
argument. Although the evidence is sufficient to support
Baldwin’s convictions on Counts One and Two for the June
16 assault, we cannot be sure that the jury did not rely on an
uncharged theory of liability for its verdict. The Government
told the jury that it could convict Baldwin of aiding and
abetting the June 16 assault based solely on his role as the
driver of the getaway car. Baldwin asserts that this amounted
to a constructive amendment of the Indictment because it
permitted the jury to convict him of aiding and abetting based
on facts that would support a conviction for the offense of
accessory after the fact, which was not charged.10 We agree.
10
Baldwin preserved his objection and thus we review
for harmless error. Neder v. United States, 527 U.S. 1, 7
(1999). We note, however, that because “[a] constructive
amendment of the charges against a defendant deprives the
defendant of his/her substantial right to be tried only on
charges presented in an indictment returned by a grand jury,”
United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007)
(internal quotation marks and citation omitted), constructive
20
The Fifth Amendment provides that “[n]o person shall
be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury.” U.S.
Const. amend. V. “Because of this constitutional guarantee, a
court cannot permit a defendant to be tried on charges that are
not made in the indictment against him.” United States v.
Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010) (internal
quotation marks and citation omitted). “From this rule comes
the general prohibition against constructive amendments.” Id.A constructive amendment occurs when,
in the absence of a formal amendment, the
evidence and jury instructions at trial modify
essential terms of the charged offense in such a
way that there is a substantial likelihood that the
jury may have convicted the defendant for an
offense differing from the offense the
indictment returned by the grand jury actually
charged.
United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006).
Put differently, “[a]n indictment is constructively amended
when evidence, arguments, or the district court’s jury
instructions effectively amends the indictment by broadening
the possible bases for conviction from that which appeared in
the indictment.” United States v. McKee, 506 F.3d 225, 229
amendments “are per se reversible under harmless error
review,” United States v. Syme, 276 F.3d 131, 136 (3d Cir.
2002). In addition, because a constructive amendment claim
presents a question of law, we exercise plenary review.
United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).
21
(3d Cir. 2007) (internal quotation marks, alteration, and
citation omitted).
To determine whether the Government constructively
amended the Indictment here, we consider whether: (1)
through its summation, the Government effectively
“modif[ied] essential terms of” the aiding and abetting assault
charges against Baldwin, Daraio, 445 F.3d at 259; and (2) in
so doing, “broaden[ed] the possible bases for conviction from
that which appeared in the [I]ndictment,” McKee, 506 F.3d at
229 (internal quotation marks omitted).
In its rebuttal summation, the Government noted that
defense counsel had “mentioned aiding and abetting” with
respect to Baldwin. App. 920. It then told the jury with
respect to the assault charge:
If he was a getaway driver, driving his car away
from a crime scene after the victim fell to the
ground and he knowingly is driving the car, that
alone, he’s guilty, any one of these.
App. 920. In telling the jury that one can aid and abet an
assault after the blows were struck, the Government
effectively “modif[ied] essential terms of the” charges against
Baldwin. Daraio, 445 F.3d at 259. This is because the
assault offense was completed by the time Baldwin entered
the car.
An offense is completed “when each element of the
offense has occurred.” United States v. Yashar, 166 F.3d
873, 875 (7th Cir. 1999). At least as the jury was instructed
here, assault requires proof of an “intentionally striking” of
22
the victim, App. 957-59; see also United States v. Davis, 726
F.3d 357, 360 (2d Cir. 2013), or making “some form of
physical contact” with the victim, Herron, 539 F.3d at 886.
An assault continues for as long as the striking occurs, but
once the contact is done, the crime is complete. Since aiding
and abetting requires a deed that facilitates the completion of
a crime, any such acts must logically occur before the crime
is completed. Indeed, “where the defendant merely
provide[s] assistance to the perpetrator of the actual crime
after its completion—and nothing more—a conviction for
aiding and abetting the principal regarding that crime cannot
stand.” United States v. Barlow, 470 F.2d 1245, 1249 (D.C.
Cir. 1972); see also United States v. Figueroa-Cartagena, 612
F.3d 69, 74 (1st Cir. 2010) (“[A] person cannot be found
guilty of aiding and abetting a crime that already has been
committed.” (internal quotation marks and citation omitted)).
Here, the Government argued to the jury that it could
find Baldwin guilty of aiding and abetting the assault of
Lokhande based solely on his role as the “getaway driver,
driving his car away from a crime scene.” App. 920. By the
time Baldwin and Santos drove away, however, Lokhande
had already been physically attacked and the assault had been
completed. The Government’s assertion that the jury could
find Baldwin guilty of aiding and abetting based only on
helping Santos and the others flee the scene of the crime was
therefore incorrect. Indeed, as Baldwin points out, such
conduct is consistent with the separate crime of being an
accessory after the fact, a crime that was not charged. See
United States v. Salamanca, 990 F.2d 629, 637-40 (D.C. Cir.
1993) (holding that flight from the scene of an assault along
with the principal does not alone constitute aiding and
abetting but may be “strong evidence” of being an accessory
23
after the fact); see also Figueroa-Cartagena, 612 F.3d at 73-74
(stating that aiding and abetting and being an accessory after
the fact are “separate offense[s] with separate elements and []
separate punishment[s]”); 18 U.S.C. § 3 (defining the crime
of being an accessory after the fact to include assisting an
offender, “knowing that an offense . . . has been committed”).
Thus, insofar as the Government’s rebuttal summation
suggested to the jury that it could find Baldwin guilty of
aiding and abetting for conduct that amounts to being an
accessory after the fact, it “modif[ied] essential terms of” the
Indictment by suggesting that the jury could convict Baldwin
for an uncharged crime. Daraio, 445 F.3d at 259. Baldwin
was not indicted for being an accessory after the fact, and
“there is a substantial likelihood that the jury may have
convicted [Baldwin] for an offense differing from the offense
the [I]ndictment returned by the grand jury actually charged.”
Id. at 260. The Government’s rebuttal summation
“broaden[ed] the possible bases for conviction from that
which appeared in the [I]ndictment” and thereby
constructively amended it. McKee, 506 F.3d at 229.
Not every stray remark in an argument or misstatement
in an instruction necessarily results in a constructive
amendment. Indeed, such remarks may be cured with
limiting or corrected instructions. See United States v.
Foster, 507 F.3d 233, 242-43 (4th Cir. 2007) (declining to
conclude that the Government had constructively amended
the indictment when, during rebuttal, it suggested that the jury
could determine the size of the charged conspiracy, in part
because the district court instructed the jury in a manner
consistent with the indictment, which charged a conspiracy of
a specific size). Here, the “jury instructions as a whole” did
not make clear that finding that Baldwin had acted as the
24
getaway driver alone was insufficient to prove that he had
aided and abetted the assault. Daraio, 445 F.3d at 260-61(considering whether, notwithstanding the possibility that the
evidence presented by the Government had constructively
amended the indictment, the jury instructions “[o]verall . . .
properly focused the jury” on the defendant’s “conduct as
charged in the indictment”). Because the instructions did not
“ensure[] that the jury would convict [Baldwin], if at all, for a
crime based on conduct charged in the [I]ndictment,” id. at
260, we must vacate Baldwin’s convictions on Counts One
and Two and remand for a new trial on those counts. 11 See
United States v. Syme, 276 F.3d 131, 156 (3d Cir. 2002).
C
Finally, we consider Santos’s challenge to his
conviction and sentence on Count Two, assault by striking in
violation of 18 U.S.C. § 113(a)(4), based upon the Double
Jeopardy Clause. Santos asserts that his conviction and
sentence on this count violates the Double Jeopardy Clause
because assault by striking is a lesser-included offense of
11
Because we are ordering a new trial, we need not
address Baldwin’s arguments about his sentence. We do,
however, remind the District Court of its obligation to address
every defendant personally and invite him or her to address
the Court before imposing sentence. Fed. R. Crim. P.
32(i)(4)(A)(ii). Asking counsel if his or her client would like
to speak at sentencing does not satisfy Rule 32’s mandate that
a sentencing judge directly address the defendant. See, e.g.,
United States v. Adams, 252 F.3d 276, 279 (3d Cir. 2001).
25
Count One, assault resulting in serious bodily injury in
violation of 18 U.S.C. § 113(a)(6).12
Under the Double Jeopardy Clause, courts may not
impose “greater punishment than the legislature intended to
impose for a single offense.” United States v. Miller, 527
F.3d 54, 70 (3d Cir. 2008) (internal quotation marks omitted).
“For the purpose of double jeopardy analysis, two offenses
are the same if one is a lesser-included offense of the other
under the ‘same-elements’ (or Blockburger) test.” Id. at 71;
see generally Blockburger v. United States, 284 U.S. 299, 304
(1932). The key inquiry under the “same-elements” or
“Blockburger” test is “whether each offense contains an
element not contained in the other; if not, they are the same
offen[s]e.” Miller, 527 F.3d at 71 (internal quotation marks
omitted).
The Government concedes error on this issue because
of the way the jury instructions were phrased. With respect to
assault by striking, the jury instructions required a finding of
“intentionally striking, beating, or wounding,” and with
respect to assault resulting in serious bodily injury, the jury
instructions required a finding of “intentionally striking or
wounding” resulting in serious bodily injury. App. 957-59.
Thus, under these instructions, the only difference between
the two offenses is that one required proof of serious bodily
injury and the other did not, making the latter a lesser
included offense. Thus, we will vacate Santos’s sentence on
12
Santos concedes that he did not preserve this issue
for appeal and that it is subject to plain error review. United
States v. Miller, 527 F.3d 54, 70 (3d Cir. 2008).
26
Count Two and remand so the District Court can merge the
two convictions on Counts One and Two and resentence him.
United States v. Tann, 577 F.3d 533, 543 (3d Cir. 2009).
III
For the foregoing reasons, we will: (1) affirm Santos’s
convictions on Counts One, Four, and Five, and vacate and
remand for resentencing as to Counts One and Two; and (2)
vacate Baldwin’s convictions on Counts One and Two and
remand for a new trial.
27