United States v. Fernandez-Jorge

United States Court of Appeals
For the First Circuit
No. 15-1900
UNITED STATES OF AMERICA,
Appellant,
v.
ÁNGEL GABRIEL FERNÁNDEZ-JORGE,
Defendant, Appellee.
No. 15-1975
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN PÉREZ-TORRES,
Defendant, Appellant.
____________________
No. 15-2001
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. DE LA CRUZ-VÁZQUEZ,
Defendant, Appellant.
____________________
No. 15-2104
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN OTERO-DÍAZ,
Defendant, Appellant.
____________________
No. 15-2168
UNITED STATES OF AMERICA,
Appellee,
v.
ISAÍAS MENDOZA-ORTEGA,
Defendant, Appellant.
____________________
No. 15-2244
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]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
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.
- 2 -
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.
June 26, 2018
- 3 -
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
1 Martínez-Trinidad elected not to pursue an appeal following his
conviction.
-4-
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
-5-
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
-6-
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-
2 The district court granted the Defendants' motion for acquittal
on Count Two of the indictment, possession of a stolen firearm,
and the government did not appeal that decision.
3 Evidence of these deaths had been excluded from trial.
-7-
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
-8-
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
4 The overwhelmingly preferred nomenclature for this form of
criminal liability -- which the indictment also used -- is the
conjunctive "aiding and abetting." Yet, 18 U.S.C. § 2 applies to
anyone who "aids, abets, counsels, commands, induces or procures
[the underlying offense's] commission." Id. (emphasis added).
This distinction seems to lack significance, though, as it is
difficult to imagine a case in which a defendant has "aided" the
commission of an offense without also having "abetted" it, or vice
versa.
-9-
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. Possession of firearms
We begin by considering whether any rational fact-finder
could have concluded beyond a reasonable doubt that the Defendant-
-10-
Appellants possessed firearms or aided and abetted each other in
doing so with advance knowledge of this element.5 See Rosemond,
134 S. Ct. at 1249; Rodríguez-Vélez, 597 at 39.
"'Knowing possession of a firearm' may be proven through
either actual or constructive possession." United States v.
Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014). Proving
constructive possession, in turn, requires proving that the
defendant had "the power and intention of exercising dominion and
control over the firearm." Id. (citing United States v. DeCologero,
530 F.3d 36, 67 (1st Cir. 2008)). Constructive possession may be
joint. DeCologero, 530 F.3d at 67. Additionally, it is possible
to prove constructive possession by relying entirely upon
circumstantial evidence. Guzmán-Montañez, 756 at 8 (citing United
States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)). However,
"mere presence with or proximity to weapons or association with
another who possesses a weapon" is insufficient to
circumstantially establish constructive possession. United States
v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009). Rather, it
is necessary to show "some action, some word, or some conduct that
5 None of the Defendant-Appellants have challenged the district
court's holding that, for Rule 29 purposes, the government
succeeded in establishing that the firearms in question had
traveled through interstate commerce, an element of Counts One and
Three. See 18 U.S.C. § 922(g), (q)(2)(A).
-11-
links the individual to the contraband and indicates that he had
some stake in it, some power over it." United States v. McLean,
409 F.3d 492, 501 (1st Cir. 2005) (quoting In re Sealed Case, 105
F.3d 1460, 1463 (D.C. Cir. 1997)). For example, valid
circumstantial evidence of constructive possession includes
evidence of an individual's "control over the area where the
contraband is found." Id.
Though no witnesses testified to having seen any of the
Defendant-Appellants possessing a weapon, the government contends
that it introduced ample circumstantial evidence of possession.
We now review that evidence.
First, Officer Ángel Fontánez testified that he was on
motorcycle patrol near Jardines de Oriente on the morning of
February 16, 2012, when he heard the sound of gunfire emanating
from the housing project. Fontánez took cover behind the
supporting column of a nearby bridge, and once the gunfire
subsided, he approached Jardines de Oriente on his motorcycle.
Though some buildings partially obstructed his view, he saw seven
or eight individuals -- several of them wearing dark clothing --
running towards a fence at the back of Jardines de Oriente. He
said that he then observed three or four people scale that fence
and head toward the entrance of a tunnel located on the other side.
-12-
Fontánez hurried to the tunnel's entrance, where several other
officers had also gathered.
Fontánez then testified that, while positioned outside
the entrance, he heard voices and the sound of gunfire from within
the tunnel. According to Fontánez, two people then emerged from
a manhole atop the tunnel and attempted to flee. When those two
did not heed Fontánez's order to freeze, he fired a warning shot.
In response, one of the two individuals retreated back down the
manhole, while the other dove into some nearby bushes. The bushes,
however, provided ineffective cover, and officers arrested this
individual (later identified as De la Cruz-Vázquez) -- whom
Fontánez described as wearing a black jacket and gloves -- and
discovered a magazine containing around 30 bullets in his pocket.
Officer Víctor Cruz-Sánchez corroborated Officer Fontánez's
testimony about arresting De la Cruz-Vázquez and finding
ammunition on him after he surfaced from the manhole.6
Agent José López-Ortiz testified that he was on patrol
when he received a radio call about the events transpiring at
Jardines de Oriente. He approached the housing project in his
6 Cruz-Sánchez himself did not testify during the second trial.
Rather, the district judge's two law clerks read Cruz-Sánchez's
testimony from the first trial into the record. One clerk played
the part of Cruz-Sánchez, and the other the various attorneys who
questioned him during that proceeding.
-13-
vehicle and waited underneath the same bridge as Fontánez, along
with other officers, until the sound of gunfire coming from
Jardines de Oriente relented. López-Ortiz testified that, as he
and Fontánez approached Jardines de Oriente together, he saw three
people dressed in black jump over a fence and into a ditch on the
other side. From there, López-Ortiz explained, those individuals
ran into a tunnel, at which point he lost sight of them.
The jury also heard testimony from Puerto Rico Police
Agent Abdel Morales-De León, another of the officers who responded
to the shootout at Jardines de Oriente. He too testified about
hearing male voices and gunfire from within the tunnel as he
approached its entrance alongside other officers. Six shirtless
males then emerged from the tunnel and were promptly detained.7
Morales-De León recovered a .233-caliber bullet -- which he
described as appearing recently discharged -- from the ground where
7 We note that the record is not entirely clear as to whether De
la Cruz-Vázquez and his companion attempted to escape from the
manhole before or after the remaining six Defendants were arrested
after emerging from the tunnel's entrance. This is largely
because no one officer testified about both events. The parties
and the district court, however, all seem to have treated the
"manhole escape" as having occurred first. Particularly because
nobody has made arguments concerning the possibility that anyone
remained in the tunnel after the seven Defendants were detained,
we do not see any reason to depart from this assumption.
Additionally, insofar as this sequence of events is more favorable
to the jury's verdict, the standard for reviewing Rule 29 motions
would also require us to construe the facts in this manner.
-14-
these individuals were arrested. He then entered the tunnel with
a group of officers, using a small flashlight to light their way.
Morales-De León explained that their search of the tunnel turned
up seven firearms, a fanny pack containing several loaded
magazines, and various articles of dark clothing. He added that
the officers noticed fresh mud prints on the steps leading up to
a manhole connecting the tunnel to the surface, and that the
manhole cover had been removed.
Officer Daniel Rosas-Rivera also provided an account of
his role in responding to the shootout and subsequent events. He
described hearing gunfire from within the tunnel as he approached
it alongside other officers. He then told the jury that he
observed six shirtless men emerge from the tunnel with their hands
up, exclaiming "don't shoot us." Rosas-Rivera was also among the
officers who entered the tunnel with a flashlight immediately after
the Defendants' arrest. He testified that their sweep of the
tunnel revealed that it was possible to exit the tunnel via a
manhole, and that they found that manhole open, its cover having
been moved aside. Rosas-Rivera also explained that the officers'
search of the tunnel yielded a bullet, loaded firearms, and
magazines.
Gualberto Rivas-Delgado testified about the
investigation of the tunnel that he undertook as a member of the
-15-
Puerto Rico Police's Technical Services Division. He arrived on-
scene at around 4:00 p.m. on the day of the shootout, after Rosas-
Rivera and Morales-De León had completed the initial sweep of the
tunnel about which they testified. Rivas-Delgado found more
ammunition inside of the tunnel -- some of it submerged in puddles,
and some sealed in a plastic bag -- as well as additional articles
of clothing, most of them dark in color.
Finally, the jury heard testimony from Edward
Pérez-Benítez, a firearms examiner and tool marks expert from
Puerto Rico's Institute of Forensic Sciences. He explained that
he had examined the weapons recovered from the tunnel and bullets
recovered from the site of the shootout at Jardines de Oriente.
His investigation led him to conclude that four of the guns found
in the tunnel had been used in the shootout.
In synthesis, the jury heard the following: (1) a
shooting had occurred in the Jardines de Oriente on the morning of
February 16, 2012; (2) seven or eight individuals in dark clothing
were seen fleeing the scene of the shooting; (3) officers saw three
or four of these men enter a tunnel; (4) De la Cruz-Vázquez was
arrested, shirtless, after trying to escape from a manhole atop
the tunnel, and was found to be carrying a loaded magazine; (5)
officers standing at the entrance to the tunnel heard weapons
discharge inside the tunnel; (6) the remaining six Defendants then
-16-
emerged, shirtless, from the tunnel and were arrested; (7) officers
recovered seven firearms, ammunition, and various articles of dark
clothing from within the tunnel; and (8) a ballistics expert linked
four of those firearms to the shootout at Jardines de Oriente.
All of this is sufficient evidence for a rational fact-
finder to conclude that at least one of the Defendant-Appellants
possessed a firearm, while the remainder aided and abetted him.
See Campa, 679 F.2d at 1013 (identity of principal not an element
of aiding and abetting). And that is sufficient to sustain the
Defendant-Appellants' Count Three convictions. The first component
of this conclusion, that at least one of the seven Defendants
possessed a firearm, is particularly unavoidable given that four
of the weapons found in the tunnel had been fired during the
shootout. Further, keeping in mind that advance knowledge of each
element of the underlying offense is an element of aiding and
abetting, see Rosemond, 134 S. Ct. at 1249, we agree with the
government that the evidence here does tend to suggest that the
Defendant-Appellants had advance knowledge of, and participated in
some form in, the shootout. Thus, we think that the evidence
would allow a rational fact-finder to conclude that any Defendant-
Appellants who were not principals (because they did not possess
firearms) nonetheless facilitated the principal or principals'
-17-
possession, with advance knowledge of this element. We now turn
to the remaining elements of Count Three.
2. Actual presence in a school zone
We now take up the assertion of De La Cruz-Vázquez and
Otero-Díaz that the government failed to establish that they were,
in fact, in a school zone when they allegedly possessed a firearm.
A "school zone" is the area within 1,000 feet from the grounds of
any school. United States v. Nieves-Castaño, 480 F.3d 597, 603
(1st Cir. 2007) (quoting 18 U.S.C. § 921(a)(25)). We note that
the proper inquiry here -- given the possibility for aiding and
abetting liability -- is whether any of the Defendants found
himself in a school zone while possessing a firearm.
At trial, government witness and Puerto Rico Police
Officer José Hiraldo-Benítez explained his conclusion, which he
reached by employing distance-measuring laser equipment, that 710
feet separated the School's perimeter fence and the point in the
tunnel where the weapons were found. He likewise explained that
804 and 837 feet separated the School's fence from two points where
spent shell casings from the shootout had been found.8 Finally,
according to Hiraldo-Benítez, the margin of error for these
measurements was less than one inch.
8 Hiraldo-Benítez's measurements relied on other officers'
representations of where the weapons in the tunnel.
-18-
We find this to be sufficient evidence to support the
conclusion that one or more of the Defendants possessed firearms
within a school zone. De La Cruz-Vázquez stresses that Hiraldo-
Benítez may have arrived at his figure of 710 feet by measuring
from a point atop the tunnel that did not necessarily lay precisely
over the point in the tunnel where the weapons were found. This
theoretical possibility does not, however, mean that no reasonable
fact-finder could have concluded that any of the Defendant-
Appellants possessed firearms anywhere within 1,000 feet of the
School.
First, a reasonable fact-finder could well have
concluded that Hiraldo-Benítez did measure from the correct point
atop the tunnel. This is particularly so given the paucity of
reasons that De la Cruz-Vázquez offers to believe that Hiraldo-
Benítez measured from an incorrect point. Second, even if
Hiraldo-Benítez did measure from the wrong point, that still would
not foreclose the reasonable conclusion that the Defendant-
Appellants possessed firearms in a school zone. Given that at
least four of the guns traveled from the site of the shootout to
the tunnel, the precise location in the tunnel where they were
found is of lesser importance. We further note that De la Cruz-
Vázquez does not dispute that shell casings were found within the
school zone. And this strongly suggests that the shootout involved
-19-
guns being fired, and therefore possessed, within a school zone.
De la Cruz-Vázquez and Otero-Díaz, therefore, come up quite short
in attempting to convince us that no reasonable factfinder could
have concluded that any of the Defendants possessed a firearm
within 1,000 feet of the School. Having resolved that point, we
now take up the final disputed element of Count Three.
3. Knowing presence in a school zone
We next consider whether each of the Defendant-
Appellants knew or should have known that they were in a school
zone while they were possessing a firearm or, alternatively, that
each of them was aiding and abetting such possession of a firearm
in a school zone with the requisite advance knowledge. See
18 U.S.C. §§ 2, 922(q)(2)(A). Circumstantial evidence may serve
as the solitary proof of one's culpable knowledge. United States
v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). However, in
Guzmán-Montañez, we overturned the defendant's conviction under
§ 922(q)(2)(A) when the government, in attempting to establish the
defendant's knowledge that he was in a school zone, relied solely
upon the school's proximity to the location where the defendant
was found armed. 756 F.3d at 11-12. In concluding that a rational
factfinder could not have made this "giant leap of faith," we
stressed in particular that the defendant was not a resident of
that area. Id. at 12. This contrasts with our holding in Nieves-
-20-
Castaño. There, in reaching the opposite conclusion about the
defendant's knowledge, we emphasized that "three minor children
lived with the defendant, and it would be easy for a jury to
conclude that she knew there were two schools nearby, within or
just outside her housing project and less than 1000 feet away, and
that she regularly passed by those schools." 480 F.3d at 604.
Here, the evidence of the Defendant-Appellants' knowledge of the
school zone seems to fall between these two poles.
The government makes a number of arguments in support of
the district court's determination that sufficient evidence
established that the Defendant-Appellants either knew or should
have known that they were in a school zone. First -- pointing
largely to the same evidence we considered in addressing their
actual presence in a school zone -- the government stresses that
the Defendant-Appellants found themselves in close proximity to
the School at the relevant times. Specifically, the government
highlights that the School's basketball court was approximately 50
feet from the fence that the Defendant-Appellants scaled en route
to the tunnel. The government adds that the basketball court's
roof was also visible from Jardines de Oriente. But, on its own
-- especially given that nothing about the roof of this basketball
court suggested that it was part of a school -- this evidence would
not suffice. See Guzmán-Montañez, 756 F.3d at 11-12. However,
-21-
this is not the extent of the evidence that the government
introduced.
The government also avers that it would be reasonable
for the jury to have inferred that the Defendant-Appellants put
some amount of forethought into the shootout and their subsequent
escape. The swiftness of the Defendant-Appellants' flight from
Jardines de Oriente and into the tunnel, the government says,
suggests they had planned out this endeavor beforehand. And as a
result, the government tells us, a rational fact-finder could
certainly infer that, in undertaking all of this planning, the
Defendants would have realized that there was a school nearby.
Furthermore, the government reminds us that all of the
Defendant-Appellants were residents of Humacao, and that all of
them except for Mendoza-Ortega lived at Dr. Palou, 9 and that
9 We pause to address what appears to be a mistake in the district
court's order on the Defendants' Rule 29 motions. In that order,
the district court first stated that Otero-Márquez lived in the
Dr. Palou housing project, while Mendoza-Ortega did not, though he
did live elsewhere in Humacao. But in the next paragraph, after
considering the arguments of the residents of the Dr. Palou
projects, the district court remarked that "Edwin Otero-Márquez
was a resident of Humacao and had been spotted with several co-
defendants at the Dr. Palou housing project on another occasion.
Hence, one can reasonabl[y] conclude that [he] knew the area well
and was aware that the [School] was located on the same street as
Dr. Palou . . . ." Thus, in this paragraph, the court appears to
have confused Otero-Márquez, who was a resident of the Dr. Palou
project, with Mendoza-Ortega, who was not. Ultimately though,
this error is harmless, because we, like the district court,
conclude that sufficient evidence established that Mendoza-Ortega
-22-
Government witness Officer Lebrón-Delgado testified that he had
seen Mendoza-Ortega at Dr. Palou before the date of the shootout.
And this is all particularly important because the School, a two-
story building, is located on the same street as Dr. Palou.
Additionally, the front of the School features signage identifying
it as an elementary school.
We think that all of this would allow a reasonable fact-
finder to conclude that all of the Defendant-Appellants either
knew or should have known that they were in a school zone. It is
difficult to imagine that the four Defendant-Appellants who lived
at Dr. Palou were unaware of the existence of a school on the same
street. Though Mendoza-Ortega did not live at Dr. Palou, we
nonetheless find it reasonable to conclude that -- as a resident
of Humacao who had visited Dr. Palou before -- he at least should
have known that he was in a school zone. And for these same
reasons, we also find it reasonable to conclude for Rule 29
purposes that the Defendant-Appellants all had "advance knowledge"
of the School's location for purposes of aiding and abetting
liability.
In summary, given the evidence at trial, a rational fact-
finder could conclude the following: (1) at least one of the
and Otero-Márquez should have known they were in a school zone.
-23-
Defendant-Appellants possessed a firearm, while the others aided
and abetted him with advance knowledge; (2) the Defendant-
Appellant(s) who possessed a firearm did so while in a school zone;
and (3) all of the Defendant-Appellants had advance knowledge of
the School's location. Thus, we hold that the government did
introduce sufficient evidence of the Defendant-Appellants'
culpability on Count Three, and that the district court did not
err in denying their Rule 29 motions as to that Count.
B. Fernández-Jorge's motion for acquittal on Count Three
We now take up the government's challenge to the district
court's grant of Fernández-Jorge's motion for acquittal. The
thrust of the government's challenge is that, while not a resident
of Humacao like the Defendant-Appellants, Fernández-Jorge
nonetheless had ample reason to know he was in a school zone. In
so arguing, the government leans on evidence that the School
(though not any signage identifying it as such) was visible from
the entrance to Jardines de Oriente and nearby roads, and on the
ostensibly planned nature of the shootout and the Defendants'
flight from it -- which, according to the government, suggests a
certain level of familiarity with the area.10
10 The government also maintained in its brief that the evidence
of Fernández-Jorge's knowledge of the school zone was particularly
strong "given the district court's observation that . . . 'the
route passing in front of the school is a principal way to arrive
at Dr. Palou.'" But the district court order does not indicate
-24-
But a number of considerations cut in the opposite
direction. For one, as Fernández-Jorge stresses, none of the
police officers who testified at trial had ever seen him in Humacao
before the shootout. In fact, the government did not introduce
any evidence that Fernández-Jorge had ever visited Humacao before
the morning of the shootout. And we recall that the only part of
the School actually visible from Jardines de Oriente is the roof
of its basketball court, which, again, provides no indication that
it is part of a school. Additionally, while it is possible that
Fernández-Jorge, who lived in San Juan, may have passed the
School's front entrance and seen the signs identifying it as a
school on his way to Humacao, this is not necessarily so. For,
Fernández-Jorge posits that in traveling to Jardines de Oriente
from San Juan, one "would ordinarily take the more direct route,"
which does not involve driving past the School's front entrance.
Setting aside the question of whether this route is in fact the
when at trial this was established, and the government has declined
to provide a citation that would illuminate us on that score. We
also observe that the government similarly cited only the district
court order -- which, again, does not contain citations to the
record -- for the proposition that the "front of the school
contains the school's name and clearly identifies [it] as being an
elementary school." We feel compelled to emphasize that --
particularly in the context of arguments concerning the
sufficiency of the evidence -- neglecting to provide citations to
the record in support of factual assertions is a poor strategic
choice.
-25-
most intuitive or direct, we do take note of the existence of an
alternative route -- a point the government concedes -- that would
not have taken Fernández-Jorge past the front of the School.
In sum, the government's arguments do not differ
significantly from those that we rejected in Guzmán-Montáñez. See
756 F.3d at 11-12. The government's only arguments that are not
a variation of imputing knowledge of a school zone though mere
physical proximity to a school involve the shootout's apparent
premeditation and coordination, and the possibility that
Fernández-Jorge drove past the front of the School on his way to
Jardines de Oriente.11
But, even assuming that the Defendants did plan the
shootout together, this would not have required them to have all
visited Jardines de Oriente and its surrounding area with
Fernández-Jorge in tow. Additionally, the School's seeming
irrelevance to both the apparent objective of the Defendants' plan
(to go to Jardines de Oriente and shoot firearms), and their
11 In its brief, the government also tells us that the word
"school" appears nearly 450 times in the trial transcript, and
that while "some fraction of those mentions were at sidebar or
otherwise outside the jury's hearing, the overall number is
nonetheless indicative of the thoroughness with which the location
of the school, its position relative to events, and its visibility
were presented to the jury." Out of fear of inadvertently
dignifying this argument with a longer discussion of it, we simply
say here that we do not find it persuasive.
-26-
attempted escape through the tunnel, also weakens the suggestion
that their advance planning would imply Fernández-Jorge's
knowledge of the school zone. And we also find the less-than-
certain possibility that Fernández-Jorge would have driven past
the School en route to Jardines de Oriente insufficient to tip the
scales towards the reasonable conclusion that he knew or should
have known of its location. This inferential "leap," see id. at
12 -- particularly in the absence of any evidence that Fernández-
Jorge had previously been to Humacao, or about how and from where
he arrived at Jardines de Oriente on the day of the shootout -- is
too large for a rational fact-finder to have made. Therefore,
because the government fails to convince us that sufficient
evidence supported the conclusion, beyond a reasonable doubt, that
Fernández-Jorge knew or should have known of the School's location,
we affirm the district court's grant of his motion for acquittal.
C. Mendoza-Ortega and Otero-Márquez's motions for acquittal on
Count One
Turning now to Count One -- which charged Mendoza-Ortega
and Otero-Márquez with possessing firearms as felons in the
principal and aiding and abetting forms -- we begin by highlighting
that Mendoza-Ortega and Otero-Márquez, and nobody else, stipulated
that they had been previously convicted of crimes potentially
punishable with over one year of imprisonment, a necessary element
of that offense. See 18 U.S.C. § 922(g). Now, in reviewing the
-27-
district court's denial of their motions for acquittal as to that
count, we ask if a rational fact-finder could have reached either
of the following conclusions: (1) that Otero-Márquez and Mendoza-
Ortega both possessed firearms; or (2) that one of these
individuals possessed a firearm while the other aided and abetted
him. This is so because these two are the only previously convicted
felons among the Defendant-Appellants. And this is a crucial
point. For, while Count Three required only that someone have
possessed a firearm and that the rest of the Defendants have aided
and abetted that person, Count One requires that at least one of
two specific individuals -- that is, those with prior felony
convictions -- possessed a firearm.
Harkening back to our earlier discussion of the
government witnesses' trial testimony, see supra § II.A.1, while
it is plain that at least one of the Defendants possessed firearms,
there is scant evidence providing insight into who among the
Defendants that may have been. Perhaps recognizing that it would
face an uphill battle in attempting to show that any particular
Defendant possessed a firearm, the government maintains that the
evidence "permits the inference" that each of the seven Defendants
possessed one of the seven firearms that police later found in the
tunnel. And because the evidence that any one Defendant in
particular possessed a firearm would be equally applicable to the
-28-
remaining Defendants,12 it seems that the only possible conclusions
to draw, for Rule 29 purposes, are that: (1) all seven Defendants
possessed their own firearm; or (2) it is impossible to know which
of the Defendants possessed firearms. As a result of all of this,
our inquiry becomes this: Could a rational fact-finder have
concluded beyond a reasonable doubt that each of the seven
Defendants possessed exactly one firearm? Or, alternatively, we
can frame the question as whether the government introduced
sufficient evidence that none of the Defendants were unarmed.
In assessing whether the jury could permissibly conclude
that, because the number of Defendants corresponds to the number
of guns, each Defendant had one gun, we find it significant that
only four of the guns were linked to the shootout. In theory, one
of the strongest arguments against the notion that one or more of
the Defendants was unarmed is essentially "who in the world would
participate in a planned shootout unarmed?" But, while convincing
in theory, this argument loses much of its persuasiveness here,
when applied to the facts established at trial.
We are confident in our conclusion, as discussed with
respect to Count Three, that a rational fact-finder could have
12 True, De la Cruz-Vázquez had ammunition on his person when he
was arrested, but because he had not been previously convicted of
a felony, this does not impact our analysis here.
-29-
concluded on the basis of the evidence at trial that the Defendant-
Appellants had advance knowledge that one of their number possessed
a firearm during the shootout in which they participated in some
form. But, it does not follow that the evidence that all seven
Defendants were involved in the shootout -- in some form -- was
strong enough to serve as the basis for the further inferential
leaps that are still necessary to land at the conclusion that all
seven Defendants possessed a firearm. This is particularly so in
light of our reluctance to "stack inference upon inference in order
to uphold the jury's verdict." United States v. Burgos, 703 F.3d
1, 10 (1st Cir. 2012) (quoting United States v. Valerio, 48 F.3d
58, 64 (1st Cir. 1995)); see also United States v. Ruiz, 105 F.3d
1492, 1500 (while circumstantial evidence alone may provide
sufficient evidence to uphold a verdict, we disfavor stacking
inferences to uphold a conviction on the basis of purely
circumstantial evidence).
Keeping in mind, once more, that only four of the seven
guns were linked to the shootout, we are left with competing
explanations as to why. It could be because three of the
Defendants, while armed, simply elected not to shoot during the
shootout. Or, it could also be that the Defendants who fired the
guns that were linked to the shootout also possessed additional
firearms that they did not use during the shootout. Or a
-30-
combination of these two things is also possible (e.g., two
Defendants were unarmed, and two Defendants each possessed two
guns, but only fired one).13 We thus conclude that there was not
sufficient evidence for a rational jury to have concluded, beyond
a reasonable doubt, that any of these scenarios was actually the
case here. See United States v. Flores-Rivera, 56 F.3d 319, 323
(1st Cir. 1995) (reversal is required when "an equal or nearly
equal theory of guilt and a theory of innocence is supported by
the evidence viewed in the light most favorable to the prosecution,
[because in such a case] a reasonable jury must necessarily
entertain a reasonable doubt") (alteration in original).
In summary, as the only Defendants previously convicted
of felonies, to convict Otero-Márquez and Mendoza-Ortega on Count
One, the government needed to show that at least one of those two
possessed a firearm. And, in the absence of any evidence that
either was more likely than the remaining Defendants to have
possessed firearms, to show that either of those two individuals
possessed a firearm, the government needed to put on sufficient
evidence that all seven Defendants did so. To arrive at that
conclusion, the jury would have had to first infer from
13 It is also theoretically possible that the Defendants were not
responsible for bringing the three unfired guns into the tunnel,
and that those guns were already there when they reached the
tunnel. We find this less probable, though.
-31-
circumstantial evidence that all seven Defendants were involved in
the shootout in some capacity, and then reject the possibility
that any of the Defendants possessed more than one firearm. Thus,
upholding the jury's verdict would require us to sanction both
stacking inferences and choosing between two "equal or nearly
equal" theories. Flores-Rivera, 56 F.3d at 323; see Burgos, 703
F.3d at 10. We decline to do so here, and hold that a rational
fact-finder could not have found beyond a reasonable doubt that
Otero-Márquez or Mendoza-Ortega possessed a firearm. We therefore
hold that the district court erred in denying those two
individuals' motions for acquittal on Count One.
III. The Jury Instructions for Count Three
Having concluded that sufficient evidence supported the
Defendant-Appellants' Count Three convictions, we now take up the
question of whether the district court's jury instructions for
that Count were erroneous.14 At the end of the trial, Mendoza-
Ortega filed a motion requesting that the district court's
forthcoming jury instructions reflect Rosemond's "advance
knowledge" requirement, see 134 S. Ct. at 1249. Otero-Márquez
joined that request at the charge conference. On appeal, Mendoza-
14 Because we conclude that insufficient evidence supported the
Count One convictions, we need not reach the question of whether
the district court's aiding and abetting instructions for Count
One were erroneous.
-32-
Ortega and Pérez-Torres both assert that, because they failed to
take Rosemond into account, the district court's aiding and
abetting instructions for Count Three were erroneous.
This argument having been duly preserved, we must now
determine de novo whether the requested instruction was
"substantially covered by" the instruction that the district court
actually gave. United States v. Baird, 712 F.3d 623, 628 (1st
Cir. 2013); see also United States v. Godin, 534 F.3d 51, 56 (1st
Cir. 2008) (our review of whether a trial court's jury instructions
captured the elements of the relevant offense is de novo).
Moreover, it is of no import that the jury returned a general
verdict here that did not distinguish between the principal and
aiding and abetting forms of the offense. A general guilty verdict
cannot stand when it may have rested on constitutionally invalid
grounds. See Griffin v. United States, 502 U.S. 46, 53 (1991)
("[W]here a provision of the Constitution forbids conviction on a
particular ground, the constitutional guarantee is violated by a
general verdict that may have rested on that ground.") (citing
Stromberg v. California, 283 U.S. 359, 568 (1931)).
In light of the request made below, we must determine
whether the district court's instructions adequately captured and
impressed upon the jury Rosemond's requirement that to be guilty
of aiding and abetting an offense, a defendant must have had
-33-
advance knowledge of each element of the offense. As Rosemond
clarifies, "advance knowledge" is "knowledge that enables [a
defendant] to make the relevant legal (and indeed, moral) choice."
134 S. Ct. at 1249. That is, the would-be accomplice must know
of the principal's plan to commit the underlying offense with
sufficient anticipation to be able to "attempt to alter that plan
or, if unsuccessful, withdraw from the enterprise." Id. Only
then may aiding and abetting liability attach.
Here, the district court instructed the jury that, to
find the Defendants guilty of Count Three in the aiding and
abetting modality, it needed to find, beyond a reasonable doubt,
first that a principal committed the crimes charged, and "[s]econd,
that the charged defendants consciously shared the other person's
knowledge of the crimes charged in the indictment, intended to
help each other, and took part in the endeavor, seeking to make it
succeed."
Whether this formulation runs afoul of Rosemond depends
on whether "seeking to make it succeed" applies to all of the
clauses that precede it, or only to its immediate predecessor:
"took part in the endeavor." If it applies to all of the preceding
clauses, then we have no Rosemond problem because the instructions
would require the jury to find that an alleged aider and abettor
knew that the principal was to commit the crime of possessing a
-34-
gun in a school zone when he leant his assistance with the intent
to make the criminal endeavor succeed. That would be consistent
with Rosemond's advance knowledge requirement. But if the pronoun
"it" in "seeking to make it succeed" refers only to "the endeavor,"
then we do have a Rosemond problem. In that case, the instructions
would allow the jury to find a defendant guilty of aiding and
abetting when the defendant (1) "took part in the endeavor, seeking
to make it succeed" by (2) assisting the principal in bringing a
gun to a particular location, and only then, upon realizing that
this location was in a school zone, (3) "consciously shared" the
principal's knowledge of the crime. That is, this interpretation
of the instruction does not require the government to have proven
that the aider and abettor shared the defendant's knowledge of the
crime before or even at the moment when he chose to lend his
assistance.15 And that would conflict with Rosemond.
15It may be helpful to visualize these alternative interpretations
in this manner. The instructions comported with Rosemond if this
is their proper interpretation: "that the charged defendants
[(consciously shared the other person's knowledge of the crimes
charged in the indictment, intended to help each other, and took
part in the endeavor), seeking to make it succeed]."
The instructions did not comport with Rosemond, though, if we
interpret them this way: "that the charged defendants
[(consciously shared the other person's knowledge of the crimes
charged in the indictment), (intended to help each other), and
(took part in the endeavor, seeking to make it succeed)]."
-35-
This second possible interpretation seems the more
likely of the two because the instruction uses the singular
"seeking to make it succeed," making it unlikely that this clause
was meant to apply to the entire list of things preceding it, which
includes the plural "crimes charged in the indictment." At a
minimum, it is distinctly possible that the jury interpreted the
instructions this way. As the Supreme Court has explained, when
faced with ambiguous jury instructions, the proper inquiry is
"'whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way' that violates the
Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(quoting Boyde v. California, 494 U.S. 370, 380 (1990)). And it
would indeed violate the Constitution if the jury convicted the
Defendants on Count Three without the government having proven all
of the offense's elements -- including "advance knowledge" --
beyond a reasonable doubt. See Patterson v. New York, 432 U.S.
197, 210 (1977) ("[T]he Due Process Clause requires the prosecution
to prove beyond a reasonable doubt all of the elements included in
the definition of the offense of which the defendant is charged.").
Finally, before vacating convictions as the result of
instructional error, we must assess whether that error was
harmless. See Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir. 1996);
accord Hedgpeth v. Pulido, 555 U.S. 58, 61 (2008). When jury
-36-
instructions fail to account for an element of the crime charged,
that error is harmless only if we can conclude "beyond a reasonable
doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been
the same absent the error." United States v. Pizarro, 772 F.3d
284, 297-98 (1st Cir. 2014) (quoting Neder v. United States, 527
U.S. 1, 17 (1999)). Here, this does not allow us to conclude that
the district court's instructional error was harmless.
First, given the centrality at trial of the question of
whether the Defendants knew of the School's location, we cannot
describe the element of "advance knowledge" as uncontested.
Moreover while we have concluded that, for Rule 29 purposes, a
rational fact-finder could have found that the Defendants knew or
should have known they were in a school zone, that requires far
less than "overwhelming" evidence. In the end, we cannot say that
overwhelming evidence established that the Defendant-Appellants
had advance knowledge that the principal was to possess a firearm
within 1,000 feet of a school. And so the error that infected the
district court's aiding and abetting instructions was not
harmless.
To conclude, there is a "reasonable likelihood" that the
jury interpreted the district court's aiding and abetting
instructions in a way that violates Rosemond. See Estelle, 502
-37-
U.S. at 72. That error was not harmless. See Pizarro, 772 at
297-98. Therefore, because the jury's general verdict could have
rested on a constitutionally impermissible ground, see Griffin,
502 U.S. at 53, we must vacate the district court's judgments of
guilty as to Count Three for all of the Defendant-Appellants.16
16 We have one last loose end to tie up. Not all of the Defendant-
Appellants requested a Rosemond instruction below, and not all of
them claim on appeal that the district court's aiding and abetting
instructions were erroneous. But we do not think that this means
that only those Defendant-Appellants who have raised this issue
should have their convictions vacated. First, the government has
not taken this position. See United States v. Burhoe, 871 F.3d
1, 28 n.33 (1st Cir. 2017) (finding that the government had
forfeited any argument that the defendants had waived a particular
issue). The purpose behind our "waiver" doctrines also supports
this conclusion. Appellate courts are typically loath to consider
forfeited arguments for two reasons. The first concerns our
institutional role as a court of review: we review the decisions
that a lower court (or agency) has actually made. See Miller v.
Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2004) ("We
have frequently said that we are a court of errors, and that a
district court cannot have erred as to arguments not presented to
it."); see also HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270,
1281-82 (Fed. Cir. 2012) (emphasizing finality and judicial
economy). The second justification stems from the idea that it
is unfair to allow parties to surprise one another with new
arguments that they did not make at the appropriate procedural
juncture. See Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 686
(D.C. Cir. 2010) (quoting Hormel v. Helvering, 312 U.S. 552, 556
(1941)).
But here, vacating the convictions of only those Defendant-
Appellants who have raised the Rosemond issue would vindicate
neither of those interests. The district court considered this
issue and issued a ruling on it. And the government -- both
because this issue arose below and because some of the Defendant-
Appellants took it up in their opening briefs -- certainly had
sufficient notice of this issue at the appellate stage. We
therefore think that the district court's instructional error
requires vacating all of the Defendant-Appellants' convictions on
-38-
IV. Conclusion
While the Defendant-Appellants have raised additional
claims of evidentiary error and challenges to their sentences, we
need not reach them. See United States v. Sasso, 695 F.3d 25, 31
& n.1 (1st Cir. 2012) (vacating because of instructional error and
then declining "to rule gratuitously upon the defendant's
remaining assignments of trial and sentencing error" because "[i]t
is unlikely that any of these claims will arise in the same posture
if the case is retried"). With regard to Fernández-Jorge, the
district court's judgment is affirmed. With regard to the
Defendant-Appellants, the district court's judgment is reversed as
to Count One and vacated as to Count Three.
Affirmed, Reversed, and Vacated.
Count Three. See United States v. Cardales-Luna, 632 F.3d 731,
736 (1st Cir. 2011) (explaining it is in the interests of justice
to treat "materially identical cases alike"); cf. Nat'l Ass'n of
Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)
(appellate courts may exercise their discretion to forgive waiver
when "the equities heavily preponderate in favor of such a step").
Lastly, we note that other courts faced with similar situations
have invoked Fed. R. App. P. 2 -- which authorizes courts to
suspend other rules sua sponte -- to forgive a defendant's failure
to incorporate by reference arguments advanced in a co-defendant's
brief pursuant to Rule 28(i). See United States v. Olano, 394
F.2d 1425, 1439 (9th Cir. 1991), rev'd on other grounds, 507 U.S.
725 (1993); United States v. Rivera-Pedin, 861 F.2d 1522, 1526 n.9
(11th Cir. 1988) (invoking Fed. R. App. P. 2's authorization "to
relieve litigants of the consequences of default where manifest
injustice would result"); United States v. Gray, 626 F.2d 494, 497
(5th Cir. 1980); United States v. Anderson, 584 F.2d 849, 853 (6th
Cir. 1978).
-39-