United States v. Figueroa-Cartagena

United States Court of Appeals
For the First Circuit
No. 08-2110
UNITED STATES OF AMERICA,
Appellee,
v.
NELIZA FIGUEROA-CARTAGENA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Baldock,* and Lipez, Circuit Judges.
Rafael F. Castro-Lang, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief
for appellee.
July 16, 2010
*
Of the Tenth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Appellant Neliza Figueroa-
Cartagena ("Neliza") was found guilty of aiding and abetting a
carjacking that resulted in death, 18 U.S.C. § 2119(3); conspiring
to commit that carjacking, 18 U.S.C. §§ 371; and aiding and
abetting the carriage or use of a firearm during the carjacking, 18
U.S.C. § 924(c)(1)(A)(ii). She and two co-defendants, Félix
Gabriel Castro-Davis ("Gabriel") and Félix Alberto Castro-Davis
("Alberto"), appealed their convictions on a number of grounds,
including sufficiency of the evidence. In a separate opinion, we
affirmed the convictions of Alberto and Gabriel. See United States
v. Castro-Davis, Nos. 08-2108, 08-2109. In this opinion, we affirm
Neliza's carjacking and conspiracy convictions and reverse her
firearm conviction.1
I.
The underlying facts are set forth in detail in the
companion opinion, United States v. Castro-Davis, Nos. 08-2108, 08-
2109. As we explained there, the jury could have found from the
evidence presented at trial that Gabriel and Alberto carjacked
Héctor Pérez-Torres on the afternoon of July 15, 2006 in Caguas,
Puerto Rico. There was no evidence presented regarding what
1
Judge Torruella dissents from the affirmance of the
carjacking and conspiracy convictions. Also, in a section of this
opinion not joined by Judge Baldock (Part II.C), I explain my
reservations about the precedents that require, in my view,
affirming the carjacking conviction, and urge en banc review to re-
examine them.
-2-
happened in the immediate aftermath of the carjacking. Later that
evening, Gabriel and Alberto arrived at Neliza's parents' house in
Cayey with Pérez handcuffed inside his own car. Gabriel had been
living at the house with Neliza, whom he was dating at the time.
Although Neliza did not arrive with Gabriel and Alberto, she placed
a phone call at that time to her brother José, who was inside the
house, and asked him to step outside to speak with Gabriel. When
José went outside, Gabriel offered him money to guard Pérez for a
while. José agreed, and Gabriel and Alberto left to withdraw money
using Pérez's ATM card.
While watching Pérez, José grew nervous and called
Gabriel to urge him to hurry. Neliza answered the phone and
assured him they were nearby.2 Just after the conversation ended,
however, Pérez jumped from the car and attempted to escape. José
unsuccessfully tried to force him back into the car, and a struggle
ensued until Gabriel, Alberto, and Neliza arrived and subdued
Pérez. In the meantime, several neighbors approached the house to
inquire about the noise. Neliza told them not to get involved, and
she and Gabriel closed a gate to prevent them from approaching.
José went to a gas station after the fight to wash his
car and drink a beer. Gabriel, Alberto, and Neliza followed to
check on him. Neliza was driving her own car, Gabriel was driving
2
It is unclear whether Neliza answered Gabriel's phone or
whether José accidentally called his sister's phone.
-3-
Pérez's car, and Alberto was sitting in Pérez's car holding Pérez
in a headlock. The three spoke briefly with José and then drove
off in the same direction.
The next day, Neliza and Gabriel met José at the house.
Gabriel explained that he and Alberto had killed Pérez the night
before by asphyxiating him with duct tape.3 Gabriel and Neliza
instructed José to threaten the neighbors and tell them to remain
silent about the previous day's events.
The following year, Gabriel, Alberto, and Neliza were
charged with aiding and abetting a carjacking that resulted in
death, 18 U.S.C. § 2119(3); conspiring to commit that carjacking,
18 U.S.C. §§ 371; and aiding and abetting the use of a firearm
during the carjacking, 18 U.S.C. § 924(c)(1)(A)(ii). After a four-
day trial, the jury returned a verdict of guilty on all counts.
The district court sentenced Neliza to a total term of imprisonment
of 262 months and sentenced Gabriel and Alberto to life
imprisonment. This appeal followed.
II.
On appeal, Neliza challenges the sufficiency of the
evidence supporting her convictions and claims that the district
court made a number of evidentiary and procedural errors that
3
The government has not alleged that Neliza was directly
involved in the killing of Pérez.
-4-
entitle her to a new trial. We address each of her arguments in
turn, beginning with the sufficiency of the evidence.
We review de novo the district court's denial of Neliza's
motion for judgment of acquittal. United States v. Thompson, 449
F.3d 267, 275 (1st Cir. 2006). Our inquiry is whether, taking the
evidence in the light most favorable to the verdict, a reasonable
factfinder could have found her guilty beyond a reasonable doubt.
Id.A. Carjacking
Neliza's challenge to her carjacking conviction focuses
on what we have called the "temporal limits" of the crime.
Ramírez-Burgos v. United States, 313 F.3d 23, 30 n.9 (1st Cir.
2002). She claims that her involvement, if any, with Alberto and
Gabriel's criminal scheme began long after those two had seized
Pérez's car. In her view, there was no basis for the jury to
conclude that she aided and abetted the carjacking because it is
not possible to aid and abet a crime that has already been
committed.4
The basic legal premise of her argument -- that she
cannot be convicted of aiding and abetting a completed crime -- is
sound. At common law, participants in a felony were divided into
4
Neliza also suggests in passing that she did not have the
requisite intent to commit the carjacking. She has not made any
attempt to develop that argument, however, and we therefore deem it
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
-5-
four categories according to the nature and timing of their
participation: "(1) first-degree principals, those who actually
committed the crime in question; (2) second-degree principals,
aiders and abettors present at the scene of the crime;
(3) accessories before the fact, aiders and abettors who helped the
principal before the basic criminal event took place; and
(4) accessories after the fact, persons who helped the principal
after the basic criminal event took place." Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 189 (2007). The enactment of the
federal aiding and abetting statute in 1909 eliminated the
distinctions among the first three categories. The statute now
provides that any such participant "is punishable as a principal."
18 U.S.C. § 2(a); Standefer v. United States, 447 U.S. 10, 19
(1980). However, Congress chose to retain the fourth category --
accessory after the fact -- as a separate class whose "offense is
distinct and is differently punished." Bollenbach v. United
States, 326 U.S. 607, 611 (1946). Accessories after the fact may
generally be imprisoned "not more than one-half the maximum term of
imprisonment . . . prescribed for the punishment of the principal."
18 U.S.C. § 3.
The temporal boundary between principals and aiders and
abettors, on the one hand, and accessories after the fact, on the
other hand, thus remains important in federal criminal law. On
each side of that boundary lies a separate offense with separate
-6-
elements and a separate punishment. United States v. Avants, 367
F.3d 433, 450 (5th Cir. 2004). One consequence of that enduring
distinction is that "a person cannot be found guilty of aiding and
abetting a crime that already has been committed." United States
v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003); SEC v. Papa, 555
F.3d 31, 36 (1st Cir. 2009).
This point has important implications for Neliza's
liability. To fully understand those implications, we must draw a
careful distinction between the "offense" of carjacking and the
offense conduct. Like many crimes, carjacking is composed of
several different types of elements: the offense conduct (the
taking of a motor vehicle from the person or presence of another by
force and violence or by intimidation), a mental state (the intent
to cause death or serious bodily harm), an attendant circumstance
(the transportation of the vehicle in interstate or foreign
commerce), and, for aggravated carjacking, a consequence (serious
bodily injury or death).5 For purposes of aiding and abetting
liability, it is the duration of the offense conduct that matters,
since the aiding and abetting statute "states a rule of criminal
responsibility for acts which one assists another in performing."
Nye & Nissen v. United States, 336 U.S. 613, 620 (1949) (emphasis
5
See 1 Wayne R. LaFave, Substantive Criminal Law § 6.1 (2d
ed. 2003) (distinguishing between "acts," "surrounding
circumstances," and "consequences"); Model Penal Code § 1.13(9)
(2001) (dividing "element[s] of an offense" into three categories:
"conduct," "attendant circumstances," and "result[s] of conduct").
-7-
added); see also United States v. Morales-Cartagena, 987 F.2d 849,
853 (1st Cir. 1993) ("[A]iding and abetting is a form of agency in
which the law holds a defendant criminally responsible for the acts
and conduct of another person even though the defendant may not
have personally committed every act constituting the offense
alleged.").6 In Neliza's case, if there is no evidence that she
aided Gabriel and Alberto in their performance of the offense
conduct (either before the fact or during the fact), her conviction
cannot stand. Cf. United States v. Delpit, 94 F.3d 1134, 1150-51
(8th Cir. 1996).
The factual premise of Neliza's argument -- that she did
not become involved until after Gabriel and Alberto seized the
car -- is also sound. The first sign of Neliza's involvement in
the criminal episode was a phone call she made to her brother José
on the evening of July 15, 2006, asking him to step outside the
6
Although the current aiding and abetting statute obscures
this point by speaking in terms of aiding the commission of an
"offense," the focus on offense conduct was explicit in the former
version of the statute, which provided: "Whoever directly commits
any act constituting an offense defined in any law of the United
States, or aids, abets, counsels, commands, induces, or procures
its commission, is a principal." 18 U.S.C. § 550 (1940) (emphasis
added). The current language was substituted as part of the 1948
re-codification of Title 18. It is apparent from the Revision
Notes that the change was intended to be stylistic only. See 18
U.S.C. § 2, Revision Notes ("Section 2(a) comprises § 550 of Title
18, U.S.C., 1940 ed., without change except in minor matters of
phraseology.").
-8-
house to speak with Gabriel.7 But the seizure of the vehicle
occurred several hours earlier, in the mid- to late-afternoon.
There was no evidence suggesting what Neliza might have been doing
at the time of the seizure or when she became entangled in the
carjacking scheme. The government attempted to fill this gap at
trial by arguing that "somebody" must have driven Alberto and
Gabriel from Cayey to the scene of the carjacking in Caguas: "They
didn't walk from Cayey to Salchichón in Caguas. Somebody took them
there, and that someone is Neliza Figueroa-Cartagena."8 But the
government presented no evidence to support that theory. Needless
to say, Alberto and Gabriel could have arrived in Caguas in any
number of ways, and they may have sought Neliza's aid after they
seized the car. The government's theory is pure conjecture, which
cannot form the basis for a criminal conviction.9 United States v.
Spinney, 65 F.3d 231, 234 (1st Cir. 1995).
7
The precise time is a matter of dispute. José testified
that it was "getting dark" when Neliza called, which he estimated
was around 6:00 p.m. It was later pointed out that the sun sets
significantly later than 6:00 p.m. during the summer in Puerto
Rico. The exact time is not critical for present purposes.
8
As we explain more fully in Part II.B, infra, this was
not the government's only factual argument about Neliza's
involvement.
9
Indeed, the government has made little effort to defend
this theory on appeal, choosing instead to obscure the distinctions
among the defendants by referring to them generically as
"appellants."
-9-
It would seem to follow that Neliza's conviction cannot
stand because there is insufficient evidence that she participated
in the carjacking offense conduct. But that conclusion rests on a
third, unstated assumption: that the offense conduct for carjacking
begins and ends when the vehicle is first seized. In our circuit,
at least, that is not the law. We have held that when a carjacking
victim is taken hostage, "the commission of [the] carjacking
continues at least while the carjacker maintains control over the
victim and [his or] her car." Ramírez-Burgos, 313 F.3d at 30 n.9;
accord United States v. Lebrón-Cepeda, 324 F.3d 52, 61 (1st Cir.
2003) (per curiam); United States v. Matos-Quiñones, 456 F.3d 14,
19 n.4 (1st Cir. 2006) (dictum); United States v.
Martinez-Bermudez, 387 F.3d 98, 101 (1st Cir. 2004) (dictum).
That gloss on the carjacking statute casts Neliza's
argument in a different light. As we have said, an individual who
arrives on the scene after the offense conduct has ended cannot be
held liable as an aider and abettor. But when the criminal conduct
extends over a period of time, a latecomer "may be convicted of
aiding and abetting even if [she] did not learn of the crime at its
inception but knowingly assisted at a later stage." United States
v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006).
Neliza's participation fits within the latter category.
Under our precedent, the carjacking offense conduct remained
ongoing while Pérez was a hostage in the car for many hours after
-10-
Neliza became involved. During that time, Neliza lent significant
aid to Alberto and Gabriel: she allowed them to hold Pérez at her
parents' house, she helped recruit her brother as a guard, and she
warded off curious neighbors. She was not "merely present" at the
scene of the crime; her aid was essential to the success of the
scheme, and she may therefore be held liable as an aider and
abettor. United States v. Peña-Lora, 225 F.3d 17, 28-29 (1st Cir.
2000) (affirming conviction where defendant aided and abetted
hostage-taking by bringing meals to the hostage and letting him out
to use the restroom); see also 2 Wayne R. LaFave, Substantive
Criminal Law § 13.2 (2d ed. 2003) (noting that an aider and abettor
may "facilitate the crime by getting . . . [a] possible witness
away from the scene").
B. The Dissent
The dissent argues that it is a due process violation to
affirm Neliza's conviction based on her conduct at the Figueroa
house. We respectfully disagree. It is true that "we cannot
affirm a criminal conviction on the basis of a theory not presented
to the jury . . . ." Chiarella v. United States, 445 U.S. 222, 236
(1980). But that is not a problem here because the jury was
specifically invited to consider Neliza's conduct at the house.
The government argued in closing that Neliza should be convicted as
an aider and abettor of the carjacking offense based in part on
that conduct, including her phone call to José and her intervention
-11-
with the neighbors. Neliza's counsel directly engaged the
government's argument in her own closing argument, questioning
whether José's account of Neliza's involvement at the house was
reliable. Thus, the whole range of Neliza's conduct was put before
the jury. It is of no moment that the government's case rested in
part on an unsupported factual assertion (i.e., that Neliza drove
Alberto and Gabriel to the site where they first seized Pérez's
vehicle). As the dissent acknowledges, we cannot overturn the
verdict because it might have been based on a factually unsupported
theory. See Santellan v. Cockrell, 271 F.3d 190, 196 (5th Cir.
2001) ("The Supreme Court has ruled that where a jury is given the
option of choosing between factually adequate and factually
inadequate theories of guilt, jurors 'are well equipped to analyze
the evidence' and can be counted upon to base their verdict upon
the factually adequate theory." (quoting Griffin v. United States,
502 U.S. 46, 59 (1991)).
Importantly, neither the indictment nor the jury
instructions limited this broad focus on the entirety of Neliza's
conduct. The indictment was framed in general terms that tracked
the language of the carjacking statute, and the jury instruction on
carjacking repeated that same language. See 18 U.S.C. § 2119("Whoever, with the intent to cause death or serious bodily harm
takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
-12-
presence of another by force and violence or by
intimidation . . . ."). The instruction on aiding and abetting, in
turn, was broadly worded and suggested that the entire course of
Neliza's conduct could be considered. For example, the jury was
instructed that "[a] particular defendant, to be responsible under
aiding and abetting, need not perform the underlying criminal act,
be present when it was performed, or be aware of all the details of
the execution to be guilty of aiding and abetting." The government
emphasized that point in its closing argument by listing all of
Neliza's conduct and asserting: "Ladies and Gentlemen, that is
called aiding and abetting. She didn't have to put the tape around
[Pérez's] face. She helped them. She aided and abetted them. She
knew what they were doing. She was standing to benefit from it,
and she is just as responsible under the law as they are."
Under the circumstances, even in the absence of an
explicit jury instruction that the offense conduct of the
carjacking charge continued while Pérez was held hostage in the
car, the jury was presented with the theory that Neliza could be
convicted of carjacking based on her conduct at the house. Neliza
had ample opportunity to rebut the factual and legal basis for that
theory. Ultimately, however, the jury chose to believe the
government's version of the facts. Affirming on that basis
therefore does not infringe Neliza's "right to be heard on the
-13-
specific charges of which [s]he is accused." Dunn v. United
States, 442 U.S. 100, 106 (1979).10
C. Reconsidering the Abduction Rule11
Although I disagree with the dissent's argument that
Neliza's carjacking conviction cannot be affirmed under our current
carjacking jurisprudence, I must acknowledge my reservations about
the correctness of that jurisprudence. The notion that the offense
conduct for carjacking continues "while the carjacker maintains
control over the victim and his or her car" is essential to the
holding that Neliza was properly convicted as an aider and abettor.
That construction of the carjacking statute, which I will refer to
as the abduction rule, has been repeated in numerous cases in this
10
The dissent also raises the separate point that the
government has not fully developed on appeal the argument that
Neliza's conviction can be affirmed based on her conduct at the
house. We acknowledge that the government's briefing is rather
unhelpful in that regard and that we could perhaps deem the
argument to be abandoned or forfeited. See United States v. Vega
Molina, 407 F.3d 511, 524 (1st Cir. 2005) ("Under the circumstances
of this case, we choose not to do the government's homework.").
But potential forfeitures arising out of poor appellate briefing
can be excused under appropriate circumstances. See Charles A.
Wright et al., Federal Practice & Procedure: Jurisdiction § 3974.1
(4th ed. 2008). The government has invoked the relevant principles
and cases, albeit in connection with the intent element rather than
the offense conduct element. We will not reverse what is otherwise
a valid conviction because the government has done a poor job of
writing its brief.
11
As already noted, Judge Baldock does not join me in this
portion of the opinion. Therefore, I must resort to the first
person in describing my views. However, as Judge Torruella makes
clear in his separate opinion, he agrees with most of the analysis
here.
-14-
circuit and finds support in several cases from other circuits.12
Nevertheless, the basis for that interpretation has never been
explained and does not appear to be firmly grounded in the
statutory text or the relevant case law. Although the panel is
bound to apply the abduction rule here, I believe the issue would
benefit from review by the full court. I explain my view.
1. Statutory Text -- "Taking"
Neliza's liability turns on whether Gabriel and Alberto's
offense conduct continued as long as Pérez was held hostage or
whether it ended at an earlier point. To determine whether (and
how long) offense conduct is capable of continuing, one must look
at the "the explicit language of the substantive criminal statute"
and the "nature of the crime involved." Toussie v. United States,
397 U.S. 112, 115 (1970). I address the statutory text in this
section, focusing on the meaning and duration of a "taking." In
the following section, I consider the possibility that carjacking
is by "nature" a crime that is capable of continuing after the
taking has ended.
The federal carjacking statute authorizes the punishment
of any individual who,
12
See Ramírez-Burgos, 313 F.3d at 30 n.9; Lebrón-Cepeda,
324 F.3d at 61; Matos-Quiñones, 456 F.3d at 19 n.4;
Martinez-Bermudez, 387 F.3d at 101; United States v. Cline, 362
F.3d 343, 353 (6th Cir. 2004); United States v. Hicks, 103 F.3d
837, 843 & nn. 4-5 (9th Cir. 1996), overruled on other grounds by
United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en
banc).
-15-
with the intent to cause death or serious
bodily harm takes a motor vehicle that has
been transported, shipped, or received in
interstate or foreign commerce from the person
or presence of another by force and violence
or by intimidation, or attempts to do
so . . . .
18 U.S.C. § 2119. At the core of the crime of carjacking is the
forcible "taking" of a motor vehicle "from the person or presence
of another." "Taking" (or "caption," as it was also called) is a
common law term of art derived from the law of robbery and larceny.
It refers to the act of "securing dominion" over something. 3
LaFave, supra, § 19.3(a); see also 3 Charles E. Torcia, Wharton's
Criminal Law § 357 (15th ed. 2009) ("There is a caption when the
defendant takes possession. He takes possession when he exercises
dominion and control over the property."). "Taking" was distinct
from "carrying away" (or "asportation"), which was a separate
element and could not occur until after the property had been
"taken." 3 Torcia, supra, § 357. Thus, at common law, a taking
was complete once the defendant had secured initial control over
the property in question.13
13
The scope of a taking was not simply an academic matter.
Because the use of force or fear had to coincide with the taking at
common law, the narrow understanding of a taking significantly
restricted the scope of a robbery. See William Blackstone, 4
Commentaries * 242 ("[I]f one privately steals sixpence from the
person of another, and afterwards keeps it by putting him in fear,
this is no robbery, for the fear is subsequent."); 4 Torcia, supra,
§ 463 ("At common law, . . . force or threatened force (putting a
victim in fear of injury) amounts to robbery only if it is used to
'take' property from the possession of another. Force or
threatened force used thereafter, in order to retain possession of
-16-
Some modern cases have adopted the view that a "taking"
continues until the defendant has achieved "complete and exclusive
control" over the property, which may be some time after the
initial seizure. Jacobs v. United States, 861 A.2d 15, 21 (D.C.
2004), judgment and opinion vacated and reissued, 886 A.2d 510(D.C. 2005). Under that theory, "a 'taking' is not complete --
that is to say, has not come to an end -- until the perpetrator has
neutralized any immediate interference with his or her possession."
State v. Mitchell, 675 S.E.2d 435, 438 (S.C. 2009) (internal
citations and quotation marks omitted); see also People v. Webster,
814 P.2d 1273, 1289 (Cal. 1991) ("The act of 'taking' begins when
the separation of the victim from his or her property occurs, and
it continues through the forcible consummation."). A few cases
have applied that theory to the federal robbery statutes, see,
e.g., United States v. Martin, 749 F.2d 1514, 1518 (11th Cir. 1985)
("The 'taking' contemplated by [the federal Bank Robbery Act] is
not completed until 'the possibility of the item being recovered'
has ended," which "continues so long as flight occurs from the
possibility of hot pursuit." (quoting United States v. Jarboe, 513
F.2d 33, 37 (8th Cir. 1975))), and some cases have used similar
language in the context of the carjacking statute, see, e.g.,
United States v. Wright, 246 F.3d 1123, 1126 (8th Cir. 2001)
("'Taking' for purposes of section 2119 is 'the acquisition by the
the property taken or to facilitate escape, does not qualify.").
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robber of possession, dominion or control of the property for some
period of time.'" (quoting United States v. Moore, 73 F.3d 666, 669
(6th Cir. 1996)).
The Supreme Court seems to have endorsed a narrow
understanding of "taking" in a leading carjacking case. In
Holloway v. United States, the Court noted that the carjacking
statute's "mens rea component . . . modifies the act of 'tak[ing]'
the motor vehicle. It directs the factfinder's attention to the
defendant's state of mind at the precise moment he demanded or took
control over the car 'by force and violence or by intimidation.'"
526 U.S. 1, 8 (1999). That passage equates the "act of taking"
with seizing control of the vehicle and suggests that the act
occurs at a "precise moment." Of course, Holloway did not involve
an extended carjacking/abduction like this case. See id. at 4 n.3
("[T]he accomplice produced his gun and threatened, '"Get out of
the car or I'll shoot."'"); see also Lebrón-Cepeda, 324 F.3d at 64(Howard, J., concurring) (arguing that Holloway did not address
"matters pertaining to what we have called 'the temporal limits' of
a carjacking"). Nevertheless, it is an important data point to
consider. Cf. SEC v. Rocklage, 470 F.3d 1, 7 n.3 (1st Cir. 2006)
("Even dicta in Supreme Court opinions [are] looked on with great
deference.").
In any case, it is not necessary to delimit the precise
scope of a taking to see that the abduction rule is not grounded on
-18-
any settled understanding of the word "taking." Even under the
broadest view, a taking ends once the victim has been subdued and
the defendant's control over the vehicle is "complete."
2. Nature of Carjacking
I noted above that certain offense conduct may be deemed
to continue if "the nature of the crime involved is such that
Congress must assuredly have intended that it be treated as a
continuing one." Toussie, 397 U.S. at 115; see also United States
v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999) ("[W]e have never
before held, and decline to do so here, that verbs are the sole
consideration in identifying the conduct that constitutes an
offense."). It is possible, then, that the duration of a
carjacking might extend beyond the initial taking if it is by
"nature" a continuing offense.
The robbery case law is instructive on this point. See
Jones v. United States, 526 U.S. 227, 235 (1999) (noting that
"carjacking is a type of robbery" and that "Congress modeled the
federal carjacking statute on several other federal robbery
statutes"). Federal and state courts have long held that the
offense conduct for robbery does not end when the initial taking is
complete. Rather, the offense conduct continues until the
perpetrator "has won his way to a place of temporary safety"
because escape is "inherent" to the crime of robbery. Martinez-
Bermudez, 387 F.3d at 102; see also United States v. Williams, 344
-19-
F.3d 365, 372-73 (3d Cir. 2003) (collecting federal cases); United
States v. Garcia-Caraveo, 586 F.3d 1230, 1235-36 (10th Cir. 2009)
(collecting state cases and statutes).14 On that theory, an
accomplice can be convicted of aiding and abetting a robbery even
if she participated in the escape phase only. See United States v.
James, 998 F.2d 74, 80 (2d Cir. 1993).
This court adopted a similar construction of the
carjacking statute in United States v. Martinez-Bermudez, 387 F.3d
98 (1st Cir. 2004). Reasoning in that case that "flight with the
vehicle is inherent to the crime" of carjacking, we held that a
carjacking continues at least until the perpetrator "has won his
way to a place of temporary safety." Id. at 102. There is no need
to question that interpretation here. It is well-grounded in the
robbery case law and is consistent with familiar principles of
criminal law. See United States v. DeStefano, 59 F.3d 1, 4 & n.5
(1st Cir. 1995). In any event, application of the temporary safety
rule, if it applied, would not be enough to support Neliza's
conviction in this case because the evidence does not suggest that
she helped Alberto and Gabriel escape from the scene of the
carjacking.
The California Supreme Court has broadened the temporary
safety rule in a way that is relevant to this case. In People v.
14
The Ninth Circuit has taken the somewhat narrower view
that a robbery continues until the period of "hot pursuit" has
ended. United States v. Pike, 473 F.3d 1053, 1060 (9th Cir. 2007).
-20-
Stankewitz, 51 Cal.3d 72, 81 (1990), the defendant was given the
death penalty based in part on a finding that he killed the victim
"during" the commission of a robbery. He challenged that finding
on appeal, arguing that he had reached a place of temporary safety
before the victim was killed and therefore did not kill her
"during" the robbery. Id. at 101. The California Supreme Court
disagreed:
So long as he held the robbery and kidnapping
victim, defendant's safety was continuously in
jeopardy. At any point in the journey, at any
one of the several stops the group made
between the Kmart and the killing scene, in
any unguarded moment, the victim might have
managed to escape or signal for help. There
was never a moment when defendant could
reasonably be said to have reached a place of
temporary safety.
Id.Stankewitz provides what may be the best support for the
view that the offense conduct for carjacking continues "while the
carjacker maintains control over the victim and his or her car."
As far as I am aware, however, no other jurisdiction has adopted
the reasoning of Stankewitz. Even in California, the rationale of
Stankewitz may not be transferable to questions of accomplice
liability. See People v. Cooper, 53 Cal.3d 1158, 1169 (1991)
("[W]e decline to adopt the escape rule, applicable in the context
of certain ancillary consequences of robbery, for purposes of
determining aider and abettor liability.").
-21-
Finally, to the extent that the legislative history may
shed light on Congress's intent, it seems that Congress was simply
not thinking about extended carjacking/abductions when it enacted
§ 2119. See, e.g., H.R. Rep. No. 102-851, pt. 1, at 15 (1992) ("In
[an 'armed carjacking'], two or three criminals approach a car
waiting at a traffic light, or stopped by means of a deliberate
'fender-bender' accident, and force the driver to turn over the
keys at gunpoint."); 138 Cong. Rec. S17,958-02 (daily ed. Oct. 8,
1992) (statement of Sen. Lautenberg) ("Increasingly, thieves are
using violence and intimidation to force drivers to give up their
cars.").
The text of the federal Bank Robbery Act, which served as
a model for the carjacking statute, reinforces this point. That
statute contains a separate provision to cover robbery/abductions:
Whoever, in committing any offense defined in
this section, or in avoiding or attempting to
avoid apprehension for the commission of such
offense, or in freeing himself or attempting
to free himself from arrest or confinement for
such offense, . . . forces any person to
accompany him without the consent of such
person, shall be imprisoned not less than ten
years, or if death results shall be punished
by death or life imprisonment.
18 U.S.C. § 2113(e). It would thus appear that Congress knows how
to authorize the punishment of abductions when it wants to provide
for it. "That Congress failed to do so here argues forcefully that
such authorization was not its intention." Omni Capital Int'l,
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106 (1987).
-22-
3. First Circuit Precedent
The origins of the abduction rule in this circuit also
raise doubts about its validity. We developed the rule in two
cases: Ramírez-Burgos v. United States, 313 F.3d 23 (1st Cir. 2002)
and United States v. Lebrón-Cepeda, 324 F.3d 52 (1st Cir. 2003)
(per curiam). Ramírez-Burgos raised the issue of when a serious
bodily injury "results" from a carjacking within the meaning of 18
U.S.C. § 2119(2). Lebrón-Cepeda raised the related issue of when
a killing is "committed in the perpetration of" a carjacking for
purposes of the felony murder statute, 18 U.S.C. § 1111.15We decided both cases on the assumption that, to be
punishable, a serious bodily injury or killing must occur while the
offense conduct is still continuing. See Ramírez-Burgos, 313 F.3d
at 30 (The term "results" includes "injuries that were caused by
the actions of the carjacker at any time during the commission of
the carjacking."); Lebrón-Cepeda, 324 F.3d at 61 ("Lebrón concedes
that the success of his challenge to the application of the
[felony] murder cross reference depends on our finding that the
killing of Fontánez did not occur during the carjacking."). Both
cases involved harms that occurred long after the vehicle had been
15
More precisely, Lebrón-Cepeda raised the issue in the
context of the Sentencing Guidelines murder cross-reference, which
is keyed to the murder statute. See USSG § 2B3.1(c) ("If a victim
was killed under circumstances that would constitute murder under
18 U.S.C. § 1111 had such killing taken place within the
territorial or maritime jurisdiction of the United States, apply
§ 2A1.1 (First Degree Murder).").
-23-
seized. In explaining why those harms were properly considered in
punishing the defendants, we expansively construed the carjacking
statute, holding that "the commission of a carjacking continues at
least while the carjacker maintains control over the victim and her
car." Ramírez-Burgos, 313 F.3d at 30 n.9. We gave no further
explanation for that statement and cited a prior First Circuit case
that, on closer scrutiny, does not seem to provide the necessary
support. Id. (citing United States v. Vázquez-Rivera, 135 F.3d
172, 178 (1st Cir. 1998)).16
16
In Vázquez-Rivera, we held that the "if serious bodily
injury results" provision is not limited to injuries that are
"'necessary to' or 'intended to effectuate' the taking of the
vehicle itself." 135 F.3d at 178. Rather,
the choice of the word "results" . . . suggests that
Congress intended to cover a fairly broad range of
consequences flowing from a carjacking. Moreover, the
legislative history characterized the provision as
imposing the enhancement when the carjacking "involves
bodily injury," which supports the view that the injuries
covered are not limited to those resulting from the
"taking" of a vehicle, but also include those caused by
the carjacker at any point during his or her retention of
the vehicle.
Id. (internal citation omitted). Although we suggested that our
discussion implicated the "temporal limits of the crime of
carjacking," it is clear that we were discussing the necessary
causal connection between the offense conduct and the resulting
serious bodily injury. Id. But see Lebrón-Cepeda, 324 F.3d at 64
n.4 (Howard, J., concurring) (recognizing that Vázquez-Rivera did
not "explicitly" state the abduction rule, but arguing that it
"implied as much when it held that a serious bodily injury
sustained by a carjacking victim during a sexual assault that
followed both the initial seizure of her vehicle and her kidnaping
'result[ed]' from the carjacking").
-24-
In retrospect, Ramírez-Burgos and Lebrón-Cepeda may have
rested on an erroneous premise. Cases interpreting similar
criminal statutes have not taken the view that an injury or killing
must happen while the offense conduct is still continuing to be
punishable.
For example, of the many criminal statutes containing an
"if serious bodily injury results" or "if death results" provision,
I am not aware of any that have been interpreted to mean that the
offense conduct must be technically ongoing at the time of the
injury or death. Instead, the applicability of such provisions
turns on a causation analysis. See, e.g., United States v. De La
Cruz, 514 F.3d 121, 138 (1st Cir. 2008) (holding that death
"results" from the use of illegally distributed drugs if the death
"was caused in fact by [the decedent's] use of drugs that were
distributed either by the defendant himself or by others in a
conspiracy of which the defendant was a part"); United States v.
Marler, 756 F.2d 206, 216 (1st Cir. 1985) (holding that death
"results" from a deprivation of civil rights if the death was "a
natural and foreseeable result of the improper conduct"). See
generally United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010).
Proof that the injury or death happened while the offense conduct
was continuing is neither necessary nor sufficient to show that the
harm "result[ed]" from the offense.
-25-
Similarly, the felony murder rule does not require proof
that the underlying felony was technically ongoing when the killing
happened. If the felony and the killing occur as part of the same
criminal transaction, the defendant will usually be liable for
felony murder. See, e.g., State v. Rice, 184 S.W.3d 646, 663
(Tenn. 2006) ("The killing may precede, coincide with, or follow
the felony and still be considered as occurring 'in the
perpetration of' the felony offense, so long as there is a
connection in time, place, and continuity of action.") (internal
quotation marks and citations omitted); Erwin S. Barbre, What
Constitutes Termination of Felony for Purpose of Felony-Murder
Rule, 58 A.L.R.3d 851, § 2[a] (1974) (stating that most courts
require that "the felony and homicide be part of a continuous
transaction, that the homicide be incident to the felony, or that
there be no break in the chain of events between the felony and the
homicide"). Thus, our assumption in Lebrón-Cepeda that the
defendant's challenge could succeed only if we found that "the
killing of [the victim] did not occur during the carjacking" was
probably inaccurate. 324 F.3d at 61 (emphasis added).
In short, it may have been unnecessary for us to develop
the abduction rule in the first place. If we had applied a
causation analysis in Ramírez-Burgos and a transactional analysis
in Lebrón-Cepeda, we would almost certainly have reached the same
result. A rethinking of the abduction rule will not seriously
-26-
disturb our settled precedent. Indeed, it would not affect Gabriel
and Alberto's convictions in this case. They were properly
convicted as principals to the carjacking, and they can be held to
account for the "result[ing]" death of Pérez even if that death did
not occur until after the offense conduct had ended.
4. Conclusion
All of these factors lead me to conclude that it is time
to reconsider the abduction rule, which can lead to strange and
seemingly arbitrary results. In this case, Neliza is guilty of
carjacking simply because Gabriel and Alberto decided to keep Pérez
in the car rather than abandon the car and hold Pérez captive in
the house. See Ramírez-Burgos, 313 F.3d at 30 n.9 ("[T]he
commission of a carjacking continues at least while the carjacker
maintains control over the victim and her car.") (emphasis added).
Moreover, to the extent the question might be close, the rule of
lenity and a presumption against continuing offenses17 might weigh
in favor of a narrower interpretation of the carjacking statute.
The temporal scope of carjacking is likely to be a
recurring issue in this circuit. It frequently arises in appeals
involving the intent element of carjacking. See Lebrón-Cepeda, 324
F.3d at 62-66 (Howard, J., concurring). It may also have
implications for venue, see Rodriguez-Moreno, 526 U.S. at 281-82;
17
See Toussie, 397 U.S. at 115; id. at 135 (White, J.,
dissenting); United States v. Johnson, 323 U.S. 273, 278 (1945).
But see United States v. Bailey, 444 U.S. 394, 413 (1980).
-27-
statutes of limitations, see Toussie, 397 U.S. at 114; ex post
facto challenges, see United States v. Muñoz-Franco, 487 F.3d 25,
55 (1st Cir. 2007); and Double Jeopardy challenges, see Brown v.
Ohio, 432 U.S. 161, 169-70 & n.8 (1977); Blockburger v. United
States, 284 U.S. 299, 302 (1932). If we intend to adhere to an
interpretation with such important consequences, we should at least
provide a more fully reasoned justification for our decision.18
D. Conspiracy
Neliza's challenge to her conspiracy conviction also goes
to the timing of the offense. She argues that "the evidence
presented at trial failed to establish that she was a member of the
conspiracy when the forcible taking of the vehicle occurred."19
However, conspiracy, like carjacking in this circuit, is often a
continuing offense. Muñoz-Franco, 487 F.3d at 55 n.32. As alleged
in the indictment and implicitly found by the jury, the conspiracy
in this case continued at least while Pérez was held hostage. See
Papa, 555 F.3d at 36 n.3 ("[A] conspiracy generally ends when the
design to commit substantive misconduct ends . . . .") (quoting
18
In questioning the validity of Neliza's carjacking
conviction, I do not in any way minimize the seriousness of her
alleged conduct. She could certainly have been held to answer for
that conduct under the laws of Puerto Rico, and she might have been
charged federally as an accessory after the fact like her brother
José, see 18 U.S.C. § 3.
19
She also suggests in passing that she did not have the
necessary intent. As with the carjacking count, we deem her intent
argument waived for lack of development. Zannino, 895 F.2d at 17.
-28-
Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1117-18
(D.C. Cir. 1991)).20
Although there is no evidence that Neliza was involved
during the initial planning phase, "the government does not need to
show as a precursor to a finding of guilt that a given defendant
took part in all aspects of the conspiracy." United States v.
Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). The evidence of her
later involvement provided a sufficient basis for the jury to infer
that she knew of Alberto and Gabriel's plan, shared their common
purpose, and acted to further that plan or purpose. No more was
needed to sustain her conviction.
E. Firearm Count
Neliza's final sufficiency of the evidence argument goes
to her conviction on the firearm count. The indictment alleged
that she aided and abetted Alberto and Gabriel in their use and
carriage of a firearm during the carjacking.21 To secure a
20
Of course, the duration of the conspiracy to commit
carjacking is linked to the duration of the carjacking itself. We
do not purport to decide what effect, if any, an abandonment of the
abduction rule would have on Neliza's conspiracy conviction.
21
Neliza was sentenced to a mandatory minimum term of seven
years under 18 U.S.C. § 924(c)(1)(A)(ii), which applies when a
firearm is "brandished." It is not clear what facts justified that
enhanced sentence or whether the district court even made the
necessary findings before imposing it. See Harris v. United
States, 536 U.S. 545, 556 (2002) (holding that "brandishing and
discharging [are] sentencing factors to be found by the judge").
Our conclusion that the conviction cannot stand makes it
unnecessary to address those issues.
-29-
conviction on that count, the government had to prove that Neliza
knew "to a practical certainty" that her confederates would carry
or use a firearm and that she "willingly took some step to
facilitate the carrying or use." United States v. Medina-Román,
376 F.3d 1, 6 (1st Cir. 2004).
We are frankly at a loss to understand what evidence
could have supported a finding of guilt under that standard. As we
have said, there is no evidence that Neliza was involved in the
initial seizure of the car. Moreover, while there is evidence that
Alberto carried a firearm throughout the entire episode, there is
no evidence that Neliza was aware of the firearm or that she took
any steps to facilitate the carrying of the firearm. The
government has not assisted us at all in this regard. It either
overlooked Neliza's argument or chose not to respond to it.
Under the circumstances, we must conclude that there was
insufficient evidence to support Neliza's conviction on the firearm
count. It was unreasonable for the jury to find Neliza guilty in
the absence of any proof that she knowingly facilitated the use or
carriage of the firearm. See United States v. Luciano-Mosquera, 63
F.3d 1142, 1151-52 (1st Cir. 1995).
III.
We turn now to Neliza's evidentiary and procedural
arguments in support of her request for a new trial.
-30-
A. Alberto's Phone Conversation
At trial, the government introduced the recording of a
telephone conversation between Alberto and his mother:
Alberto: Neliza is the one who's talking.
Mother: Really?
Alberto: I saw the sworn statement.
Mother: Yes, the police told me.
Alberto: Yeah? That bitch is going to
fuck us over. We can't talk too
much through here, either.
Mother: They told me that she talked
really bad -- that she was
talking about . . .
Alberto: I saw the sworn statement,
that's all I have to say. I
went to court yesterday.
Neliza argues that the introduction of the phone
conversation violated her rights under the Confrontation Clause,
which provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him." U.S. Const. amend. VI. The Supreme Court's
decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis
v. Washington, 547 U.S. 813 (2006), define the basic contours of
the Confrontation Clause as it applies to out-of-court statements.
Under those cases, "testimonial" statements may not be admitted as
evidence of a defendant's guilt unless the declarant can be cross-
examined on the witness stand at trial or, if the declarant is
-31-
unavailable, the defendant had a prior opportunity for
cross-examination. See Melendez-Diaz v. Massachusetts, 129 S. Ct.
2527, 2531 (2009); Whorton v. Bockting, 549 U.S. 406, 413 (2007).
Non-testimonial statements, by contrast, do not "cause the
declarant to be a 'witness'" within the meaning of the Sixth
Amendment and thus are "not subject to the Confrontation Clause."
Davis, 547 U.S. at 821.
In multi-defendant trials like this one, an additional
layer of analysis may be necessary. When the prosecution seeks to
introduce a statement made by one of the defendants, the statement
will typically be admissible against that defendant (the
declarant), who has no constitutional right to confront himself.
See United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir.
1978); United States v. Brown, 441 F.3d 1330, 1359 (11th Cir.
2006); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence § 802.05[3][d] (2d ed. 2005). But introduction of
the statement may raise confrontation problems with respect to the
other defendants if the declarant exercises his right not to
testify at trial.
Before Crawford and Davis were decided, the Supreme Court
developed a two-tiered framework for determining admissibility when
a non-testifying defendant's statement is proffered at trial.
Statements that facially incriminate a co-defendant are per se
inadmissible under the rule of Bruton v. United States, 391 U.S.
-32-
123 (1968). See also Gray v. Maryland, 523 U.S. 185, 192 (1998).
By contrast, statements that incriminate a co-defendant "only when
linked with evidence introduced later at trial" can be admitted if
references to the co-defendant are redacted and the jury is
instructed not to consider the statement against any defendant
other than the declarant. Richardson v. Marsh, 481 U.S. 200, 208,
211 (1987). We presume in the latter situation that the jury will
follow instructions and consider the statement only for the proper
purpose (assessing the declarant's guilt) and not the improper
purpose (assessing the co-defendant's guilt). See id. at 206-07,
211.
The Bruton/Richardson framework presupposes that the
aggrieved co-defendant has a Sixth Amendment right to confront the
declarant in the first place. If none of the co-defendants has a
constitutional right to confront the declarant, none can complain
that his right has been denied. It is thus necessary to view
Bruton through the lens of Crawford and Davis. The threshold
question in every case is whether the challenged statement is
testimonial. If it is not, the Confrontation Clause "has no
application." Bockting, 549 U.S. at 420; see also United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009) ("Because it is premised
on the Confrontation Clause, the Bruton rule, like the
-33-
Confrontation Clause itself, does not apply to nontestimonial
statements.").22
Applying these principles, we conclude that Neliza's
confrontation argument is without merit. We considered the
character of the phone conversation in the companion opinion,
holding that the statements made by Alberto and his mother were not
testimonial. See Castro-Davis, Nos. 08-2108, 08-2109. As a
consequence, Neliza has no constitutional right to confront
Alberto. Her claim under the Confrontation Clause, whether
denominated a Crawford challenge or a Bruton challenge, must be
rejected.23 Johnson, 581 F.3d at 326.
22
Accord United States v. Smalls, 605 F.3d 765, 768 n.2
(10th Cir. 2010); United States v. Avila Vargas, 570 F.3d 1004,
1008-09 (8th Cir. 2009); Thomas v. United States, 978 A.2d 1211,
1224-25 (D.C. 2009); United States v. Pike, 292 F. App'x 108, 112
(2d Cir. 2008) (summary order); 5 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 1:40 (3d ed. 2007).
23
Of course, the phone conversation must still meet the
requirements of the Federal Rules of Evidence. See Johnson, 581 at
325-26. The district court ruled that the phone conversation was
hearsay but nevertheless admissible against Neliza as a statement
against penal interest. See Fed. R. Evid. 804(b)(3). Neliza
challenges that ruling on appeal, arguing that nothing in the phone
conversation was against her (Neliza's) penal interest. That is
not the relevant inquiry, however. Rule 804(b)(3) requires the
district court to ask whether the statement at issue "so far tended
to subject the declarant" -- in this case, Alberto -- "to . . .
criminal liability . . . that a reasonable person in the
declarant's position would not have made the statement unless
believing it to be true." Id. (emphasis added). Neliza makes no
argument on that issue, and we decline to address it without the
benefit of briefing.
-34-
B. Gabriel's Statement
Neliza also raises a Confrontation Clause challenge with
respect to the trial testimony of FBI agent Eric Gonima. In his
testimony, Gonima recounted the details of a post-arrest interview
he conducted with Gabriel. Gabriel denied all involvement with the
carjacking and killing of Pérez in the interview. He briefly
mentioned Neliza, acknowledging that she had been his girlfriend
and that he knew her family, though "not very well." Neliza argues
that it was erroneous for the district court to admit the testimony
without instructing the jury that Gabriel's statement could not be
considered as evidence against her. See Richardson, 481 U.S. at
211. Because she objected at trial, we review her claim de novo.
United States v. Vega Molina, 407 F.3d 511, 519 (1st Cir. 2005).
Gabriel's statement to the FBI was undoubtedly
testimonial, and it therefore falls within the scope of the
Confrontation Clause. We would ordinarily ask at this point
whether the statement was "inculpatory on its face" with respect to
Neliza. Id. at 520. There is no need to undertake that inquiry
here, however, because the government concedes that even if the
statement was admissible, it was error to admit it without a
limiting instruction. See id. at 521 ("Supreme Court case law
makes clear that the trial court ordinarily should instruct the
jury that one defendant's out-of-court confession may not be used
against his codefendants in a joint trial.").
-35-
Nevertheless, the government says, the district court's
error was harmless beyond a reasonable doubt. We agree. The only
fact about Neliza that was directly or indirectly revealed through
Gabriel's statement was the existence of her relationship with
Gabriel. But that relationship was already well-established
through José's testimony and the testimony of neighbors. Gabriel's
statement added no new information in that regard. Any error in
admitting the statement without a limiting instruction was harmless
beyond a reasonable doubt.
C. Peremptory Challenges
Neliza criticizes the district court's procedure for
exercising peremptory challenges at voir dire. Because she did not
make a contemporaneous objection, we review for plain error.
Federal Rule of Criminal Procedure 24 sets forth the
number of regular peremptory challenges that the parties may
exercise and grants them several "additional" challenges that "may
be used only to remove alternate jurors." We have interpreted the
rule to mean that the district court must designate particular
members of the venire as prospective alternate jurors and must
limit the parties' additional challenges to that group. See United
States v. González-Meléndez, 594 F.3d 28, 33 (1st Cir. 2010). The
district court failed to follow that procedure in this case.
Rather than separating the parties' regular strikes from their
additional strikes, it required the parties to exercise all of
-36-
their strikes at once against an undifferentiated panel of
prospective jurors. That was error, as the government concedes.
Nevertheless, Neliza has not shown that the error was
prejudicial. See United States v. Olano, 507 U.S. 725, 735 (1993)
(plain error standard generally requires the defendant to show that
the error "affected the outcome of the district court
proceedings"). She argues that she suffered prejudice because one
of the regular jurors was excused and replaced by an alternate
juror. We rejected that same argument on materially identical
facts in United States v. González-Meléndez, a decision made under
the Rule 52(a) harmless error standard:
Gonzalez-Melendez . . . distinguishes [United
States v. Brown, 510 F.3d 57 (1st Cir. 2007)
and United States v. Flaherty, 668 F.2d 566(1st Cir. 1981), where we found similar errors
to be harmless]. Unlike in those cases, he
observes, in this case an alternate juror was
actually seated. Thus, he claims, prejudice
is readily apparent in his case.
We do not see how that conclusion follows. It
is not evident that the composition of the
jury would have differed had the district
court adhered to Rule 24(c)(4). Moreover,
even if a different venire member would have
been selected as the alternate juror, there is
no basis in the record for concluding that the
alteration in jury composition had an
injurious influence on the verdict.
Therefore, we conclude that the court's error
was harmless.
-37-
594 F.3d at 34. As in González-Meléndez, there is no evidence here
that the district court's error injuriously affected the outcome of
the proceedings.24
D. Jury Note
Neliza's final procedural claim relates to a note sent by
the jury during deliberations. The note, which was made part of
the record, stated that the jury would like to "hear again the
phone conversation between [Alberto] and his mother." The district
court's minute entry from that day indicates that the note was
"received and discussed with counsel," but there is no indication
what action, if any, was taken in response. The trial transcript
contains no record of any proceedings involving the jury note.
Neliza argues that she was never informed of the note.
Although the minute entry contradicts her assertion, she has
included in the addendum to her brief an e-mail in which her trial
counsel denies any knowledge about how the note was handled. We
decline Neliza's invitation to delve into this dispute on the basis
of unsworn evidence that was never presented to the district court.
There are various avenues available to a party who seeks to remedy
a perceived omission or misstatement in the record. See Fed. R.
App. P. 10(c), (e); 16A Charles Alan Wright et al., Federal
24
This conclusion does not lessen our concern about the
district court's violation of the rule applicable to the selection
of alternate jurors. In the future, the district court should
scrupulously comply with Rule 24.
-38-
Practice & Procedure § 3956.4 (3d ed. 1999 & Supp. 2008). But
inserting new evidence into the addendum of a brief is not one of
those avenues. The e-mail is stricken from the record, and we
disregard Neliza's argument because it depends on the improperly
included material. See Nicholson v. Hyannis Air Serv., Inc., 580
F.3d 1116, 1128 (9th Cir. 2009).
We note that similar allegations regarding the handling
of a jury note were made in González-Meléndez, which was tried by
different attorneys before the same district court judge. In that
case, as here, the trial transcript contained no record of any
proceedings relating to the jury note. Because this issue may
recur, we emphasize again that proceedings in response to a jury
note should be conducted on the record. See United States v.
Ofray-Campos, 534 F.3d 1, 17 (1st Cir. 2008) (describing the proper
procedure); United States v. Rodriguez, 67 F.3d 1312, 1316 (7th
Cir. 1995); 28 U.S.C. § 753(b).
IV.
For the reasons stated above, we AFFIRM Neliza's
convictions on Count I (conspiracy) and Count II (carjacking),
REVERSE her conviction on Count III (carriage or use of a firearm
during a crime of violence), and REMAND for resentencing.
SO ORDERED.
– Concurring and Dissenting Opinion Follows –
-39-
TORRUELLA, Circuit Judge (Concurring in part; Dissenting
in part). My colleagues have written a cogent and well-reasoned
opinion, much of which I agree with. However, because "we cannot
affirm a criminal conviction on the basis of a theory not presented
to the jury," I must dissent. Chiarella v. United States, 445 U.S.
222, 236 (1980).
To begin, I reprise the relevant facts. Alberto,
Gabriel, and Neliza were indicted on the same charges and tried
jointly.25 There was enough direct and circumstantial evidence
presented to the jury to permit it to find that Alberto and Gabriel
took Pérez's car from his person by violence or intimidation, with
the aid of a firearm, and that sometime after this "physical
taking" they brought Pérez and his car to José's house for
safekeeping.26 See Castro-Davis, Nos. 08-2108, 08-2109. The
evidence as to Neliza's involvement on the other hand, was not so
clear. I agree with the majority that there was no evidence
presented that would allow a jury to make a reasonable inference
that Neliza was involved in the planning stages of the carjacking,
25
Count I of the indictment charged defendants under 18 U.S.C.
§ 371 (conspiracy to commit carjacking), Count II under 18 U.S.C.
§§ 2119(3) and 2 (aiding and abetting a carjacking resulting in
death), and Count III under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2
(using or carrying a firearm in connection with a carjacking).
26
I will refer to "physical taking" as the time period during
which the carjacker obtains possession of a motor vehicle while in
the presence of another. In the present case, that "physical
taking" ended once Pérez and his car were captured by the
carjackers and one of them began to drive it.
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or that she was involved at the "physical taking" of the car from
Pérez's person. See Maj. Op. at 9.
The evidence at trial instead showed that Neliza first
became involved when she called her brother, José, and told him to
step outside his home to receive Gabriel. That phone call,
however, did not establish that Neliza knew anything about the
carjacking. José testified that soon after receiving the call, he
stepped outside to meet Gabriel. His testimony was completely
devoid of any mention of Neliza. Conspicuously absent from the
record was any inquiry from the government as to Neliza's
whereabouts at this point in José's testimony.27 As the majority
opinion makes clear, the first time there was any evidence that
Neliza learned of the carjacking was many hours after the "physical
taking" of Pérez and his car.28
27
A reading of the trial transcript evinces copious use of the
word "they" by both the prosecution and witnesses, with no attempt
made to clarify whether "they" referred to Alberto, Gabriel and
Neliza; Alberto and Gabriel; or some other combination of the
three. In fact, when José testifies that Gabriel and Alberto
brought Pérez to the house, the prosecutor does not ask whether
Neliza (who José had testified had called him to come out of his
house to receive Gabriel) also came with Alberto and Gabriel.
Instead, the prosecutor next asks José: "Okay. So you were told
that Gabby and whoever were going to an ATM machine . . . ."
(emphasis added). As the majority points out, the government seems
to have chosen the same strategy on this appeal, referring to
appellants generically as "appellants" and not individually. Maj.
Op. at 9 n.7.
28
All the evidence points to the "physical taking" taking place
in the early hours of the afternoon. José testified that it was
"getting dark" when Neliza called. The official record of the
Astronomical Applications Department of the U.S. Navy indicates
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As the majority well-states the law, a person cannot be
found guilty of aiding and abetting a crime that already has been
committed. See SEC v. Papa, 555 F.3d 31, 36 (1st Cir. 2009); see
also Maj. Op. at 6-7. Similarly for conspiracy. See United States
v. O'Campo, 973 F.2d 1015, 1021 (1st Cir. 1992) ("Under the
doctrine of Pinkerton v. United States, 328 U.S. 640, 645-46
(1946), a defendant co-conspirator may be held responsible for a
substantive crime committed by another conspirator in furtherance
of the conspiracy if that crime is committed while the defendant
co-conspirator is a member of the conspiracy." (emphasis added)).
The issue here is therefore about timing. Since Neliza's
involvement could only be found by a reasonable jury after the
"physical taking" of Pérez and his car took place, her conviction
must be overturned unless the offense of carjacking continued until
the time when Neliza first became involved. The majority holds
that the law of this circuit is such that the offense conduct of
carjacking in this case was still ongoing after the "physical
taking" since Alberto and Gabriel remained in control of the victim
Pérez and his car. It thus concludes that there was sufficient
evidence presented to the jury to convict Neliza based on the
that sundown was at 7:04 pm on July 15, 2006. Naval Oceanography
Portal: Sun Or Moon Rise/Set Table for One Year: U.S. Cities and
Towns at http//www.usno.navy.mil/USNO/astronomical-applications/
data-services/rs-one-year-us (last visited June 15, 2010). At
least three hours, and probably closer to five hours passed between
the "physical taking" and Neliza's involvement.
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theory that the offense conduct of carjacking is ongoing so long as
"the carjacker maintains control over the victim and [his or her]
car." See Maj. Op. at 24 (quoting Ramírez-Burgos, 313 F.3d at 30
n.9).
I do not disagree with the majority's reading of our case
law, although I have serious reservations about the correctness of
the abduction rule. First, as the majority explains, the abduction
rule was grounded on a case that does not actually support it. See
Ramírez-Burgos, 313 F.3d 23, 30 n.9 (1st Cir. 2002)(citing United
States v. Vázquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998)
(Torruella, C.J.) for the proposition that "the commission of a
carjacking continues at least while the carjacker maintains control
over the victim and her car."); see also Maj. Op. at 21 n.12. We
appear to have mechanically repeated this phrase in subsequent
opinions without explanation. See, e.g., United States v. Lebrón-
Cepeda, 324 F.3d 52, 61 (1st Cir. 2003); United States v. Matos-
Quiñones, 456 F.3d 14, 19 n.4 (1st Cir. 2006); United States v.
Martínez-Bermúdez, 387 F.3d 98, 101 (1st Cir. 2004).
Second, the abduction rule shifts the issue from a causal
analysis of whether serious bodily injury (§ 2119(2)) or death
(§ 2119(3)) results (is causally connected to) to an inquiry that
mechanically ends when the carjacker releases the victim and her
car. See Ramírez-Burgos, 313 F.3d at 30. In my view, this is a
misreading of the statute. As the majority explains, the word
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"results" merely indicates a causal connection, one not necessarily
circumscribed by the time when the offense conduct of the
carjacking ends. As an example, it seems clear that if a defendant
took a car, shot the victim in the process, and abandoned the car
an hour later, we would not say the crime was ongoing over the
course of the three weeks it took for the victim to languish in the
hospital and die. It also seems clear that in that situation, the
carjacker could be convicted under the plain language of § 2119(3).
However, under our current abduction rule, he might not be.
Finally, and as relevant later, I do not see where the
abduction rule is in any way supported by the plain language of the
statute,29 whether by a plain and commonsensical definition of the
word "take" -- "to get into one's hands or into one's possession,
power or control by force or stratagem"30 -- or as derived from the
common law of robbery and larceny. It is not apparent to me why a
reasonable person would read the carjacking statute and believe
29
18 U.S.C. § 2119(3) reads:
Whoever with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall
. . . if death results, be fined under this title or
imprisoned, any number of years up to life, or both, or
sentenced to death.
(emphasis added).
30
Webster's Third New International Dictionary Unabridged 2329
(1976).
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that the "taking" of a car under the statute continues while the
carjacker maintains control over the victim and his or her car. I
simply do not see how a reasonable person would assume that
"tak[ing] a motor vehicle . . . from the person or presence of
another by force and violence or by intimidation," § 2119(3), is an
act that continues past the moment when the carjacker has obtained
(i.e., already taken) clear possession (in this case, sometime
before Alberto and Gabriel arrived at José's house).
While I concur with the majority's analysis of our
current law and join in calling for the en banc court to correct
this error promptly, I nevertheless cannot join their conclusion.31
Although it may well be the law of our circuit, the abduction rule
theory was never presented to the jury as a basis of conviction.
Indeed, the jury was told they could convict on the basis of what
the majority calls "pure conjecture." See Chiarella v. United
States, 445 U.S. at 236 (finding that "we cannot affirm a criminal
conviction on the basis of a theory not presented to the jury");
Cola v. Reardon, 787 F.2d 681, 693 (1st Cir. 1986) (holding that it
is in violation of due process to affirm a conviction on a basis
neither set forth in the indictment nor presented to the jury at
trial); see also Dunn v. United States, 442 U.S. 100, 106 (1979)
(holding that "[t]o uphold a conviction on a charge that was
31
I do, however, join the majority's conclusion that there was
no evidence to support the gun charge against Neliza.
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neither alleged in the indictment nor presented to a jury at trial
offends the most basic notions of due process.").
At closing arguments, the government asked the jury to
infer that Neliza was involved at the time of the physical taking
of the vehicle from Pérez, arguing that it had been Neliza who
drove Gabriel and Alberto to the site of the carjacking because
"[s]omeone had to keep a gun on [Pérez]" or he would have escaped.
The government presented no evidence to support this theory nor did
it posit any other theory under which the jury should find Neliza
guilty. The jury was never told that Neliza could be legally
convicted even if the jury found that she first learned of the
carjacking after the "physical taking" had occurred, while Alberto
and Gabriel maintained control over Pérez and his car. See
Ramírez-Burgos, 313 F.3d at 30 n.9. Significantly, the government
never argued the "abduction rule" as the law of the circuit,
neither at trial nor in its appellate brief.32 Instead, the
government asked the jury to infer from the evidence presented that
Neliza was involved in the "physical taking" of the carjacking, or
possibly even before it, and that she must have known there was a
gun being used on Pérez. The majority finds correctly that this
32
Indeed, the government's appellate brief cites most of the
cases the majority discusses as setting out the abduction rule, but
it cites them for the issue of whether sufficient evidence was
presented as to the conditional intent to cause serious bodily harm
or death. See Gov't Brief at 21-23. Naturally, Neliza also did
not raise this theory at trial or on appeal.
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theory was "pure conjecture" and that there was not sufficient
evidence for a reasonable jury to convict Neliza based on this
theory. See Maj. Op. at 9.
The instructions given to the jury were also unclear as
to the temporal bounds of the offense conduct of carjacking, never
specifying that the offense conduct included the time after the
"physical taking" and that as such, Neliza could be convicted if
the jury found she was involved after Pérez and his car arrived to
José's house. Specifically, the jury was instructed that they
should convict if they found that the defendants either conspired
or aided and abetted each other in "taking Mr. Pérez's Mazda by
force and intimidation with intent to cause death and serious
bodily harm by force, violence, and intimidation, and actually
resulting in death." The instructions were not improper as to the
elements, they essentially mirrored the carjacking statute.
However, they did not clarify what those elements meant. The
instructions left up to the mind of the jury to define "taking" in
what I view as an unsupportable extension -- that is, as including
the conduct of defendants after they arrived at José's house. By
not defining our case law on the subject of carjacking and not
specifying that the act of carjacking in this case would legally
continue up until the moment that the carjackers lost control of
the victim or his car, and because this is by no means an obvious
or natural interpretation of the instructions, the only inference
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we have left is that the jury convicted Neliza on the government's
theory at trial which the majority now finds to be insufficient to
sustain her conviction.
"The Supreme Court has ruled that where a jury is given
the option of choosing between factually adequate and factually
inadequate theories of guilt, jurors 'are well equipped to analyze
the evidence' and can be counted upon to base their verdict upon
the factually adequate theory." Santellan v. Cockrell, 271 F.3d
190, 196 (5th Cir. 2001) (citing Griffin v. United States, 502
U.S. 46, 59 (1991)). However, that is not the case here. Here the
jury was given one theory of guilt: that Neliza was present at the
moment of the "physical taking." The jury was never told the
theory that the majority now uses to affirm her conviction: that
Neliza was involved after the "physical taking" but while the
carjackers remained in control of Pérez and his car. That a jury
might have "divined [this] theory from the facts" and from the law
as read to them in the jury instructions is not sufficient. Cola,
787 F.2d at 699 n.19. "The problem with th[at] view . . . is the
serious risk involved that the jury did not so divine the appellate
theory, and instead, that it convicted based on the erroneous or
noncriminal theories before it." Id. Barring any kind of
explanation as to the law of our circuit explaining the abduction
rule, I simply do not see how a jury might have divined it.
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I view this case as analogous to the Supreme Court's
decision in Chiarella. 445 U.S. 222. In that case, the employer
of a financial printer engaged to print corporate takeover bids was
convicted based on his purchase of stock in target companies
without informing its shareholders of his knowledge of proposed
takeovers. Id. at 224-25. The Supreme Court held that his conduct
did not violate the Securities Exchange Act and thus his conviction
was improper. Id. at 224-35. In its brief to the Court, the
government for the first time offered an alternative theory to
support the conviction, arguing that petitioner's conviction could
be affirmed on the basis that he owed a duty to the corporation
that had hired the printing company. Id. at 235.33 The Supreme
Court reaffirmed the maxim that "we cannot affirm a criminal
conviction on the basis of a theory not presented to the jury," and
held that the jury instructions and the government's theory at
trial showed that the jury had convicted on the theory of
petitioner's failure to disclose to shareholders, and not on a duty
owed to anyone else. Id. at 236.
Similarly in our previous decision in Cola, 787 F.2d 681,
we granted habeas because the defendant had no notice at trial of
the theory which was eventually used by the state appeals court to
uphold his conviction. Citing to Dunn, 442 U.S. 100, and granting
33
I note that the government in this case has not brought up
the abduction rule at any point in these proceedings.
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habeas, we worried about the "sixth amendment problems of whether
defendants have ever been presented with an opportunity to
confront, in a fact-finding forum, the government's final theory of
guilt" and noted that it was "not clear whether an opportunity has
been provided to have guilt determined by a jury in the first
instance [on that theory]." Cola, 787 F.2d at 701. Just like in
Dunn, our court found that "the prosecution in Cola's trial did not
build its case on the evidence supporting the appellate theory,"
and rejected the assumption "that the jury would somehow divine,
and independently articulate, the appellate theory." Id. at 700;
Dunn, 442 U.S. at 106 ("[W]hile there was no variance between the
indictment and proof at trial, there was a discrepancy between the
basis on which the jury rendered its verdict and that on which the
Court of Appeals sustained petitioner's conviction.").
That there was evidence presented sufficient to convict
Neliza as an accessory after the fact under 18 U.S.C. § 3, there is
no doubt in my mind.34 However, the government did not charge
Neliza as an accessory after the fact. Neliza was charged in the
same way as Alberto and Gabriel: as an aider and abettor and
conspirator to carjacking and to carrying a firearm during a
carjacking. The firearm charge proved to be patently baseless, and
34
Neliza can also be properly charged in the Commonwealth
courts for the various state crimes which, if proven by proof
beyond a reasonable doubt, could very well result in her conviction
for several serious felony offenses.
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a directed verdict should have been entered by the district court
upon Neliza's Rule 50 motion. We correct that error now and I
fully join the majority in its decision as to that charge. But
because the majority upholds Neliza's conviction on a theory which
was never presented to the jury, I cannot join in upholding her
conviction as to the other two counts.
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