United States v. Prado
2016 U.S. App. LEXIS 3183
| 2d Cir. | 2016Background
- Martinez and Ortega, members of MS-13, were tried and convicted on multiple RICO-related counts; Count 21 charged both with violating 18 U.S.C. § 924(c) (use/possession/brandishing of a firearm in relation to a crime of violence) or aiding and abetting that violation under 18 U.S.C. § 2.
- The underlying offense was the March 2010 murder of Mario Alberto Canton Quijada; the gun used to attempt to shoot the victim jammed and the victim was killed by stabbing/maiming with bladed weapons.
- Evidence: Ortega earlier attempted to give Quijada a .22 handgun; the same .22 was later used (and jammed) at the beach. Martinez was implicated in bringing the machete and later struck and kicked the victim; Martinez also allegedly handled the machete and the gun after it jammed.
- Trial court gave general aiding-and-abetting instructions and a § 924(c) instruction that did not specify that accomplice advance knowledge of a firearm was required at a time when the accomplice could have withdrawn.
- After the trial, the Supreme Court decided Rosemond v. United States, holding that to aid and abet a § 924(c) violation an accomplice must have advance knowledge that a confederate would be armed (knowledge enabling a choice to desist).
- The Second Circuit reviewed whether the trial instructions were erroneous under Rosemond and whether any error was prejudicial as to Martinez and Ortega.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court's aiding-and-abetting instruction was legally sufficient for a § 924(c) charge after Rosemond | Government: general aider-and-abettor instruction plus § 924(c) elements sufficed to show culpable intent | Defendants: instruction failed to require that accomplices have advance knowledge of a firearm such that they could choose to withdraw | Instruction was plainly erroneous under Rosemond for failing to require a finding of advance knowledge of a gun at a time the defendant could withdraw |
| Whether the instruction error was "plain" and preserved for appeal | Government: no warrant to apply Rosemond backwards to invalidate instruction | Defendants: error is clear under Rosemond; plain-error review applies | Error was plain and reviewable under plain-error principles |
| Whether the instructional error affected Ortega's substantial rights (prejudice) | Government: circumstantial evidence of Ortega's foreknowledge and possession supports conviction | Ortega: limited evidence of advance knowledge or post-appearance participation; reasonable probability of different outcome | Prejudice shown as to Ortega; conviction on Count 21 vacated and remanded for resentencing |
| Whether the instructional error affected Martinez's substantial rights (prejudice) | Government: Martinez continued to participate after the gun appeared; direct statements and conduct show post-appearance culpability | Martinez: instruction error could have affected verdict | No reasonable probability of different outcome for Martinez; conviction on Count 21 affirmed |
Key Cases Cited
- Rosemond v. United States, 134 S. Ct. 1240 (Sup. Ct.) (accomplice must have advance knowledge of a firearm to be guilty under § 924(c) as an aider/abettor)
- United States v. Rivera, 799 F.3d 180 (2d Cir. 2015) (standard for reviewing jury instruction challenges)
- United States v. Marcus, 560 U.S. 258 (Sup. Ct.) (plain-error review framework)
- United States v. Olano, 507 U.S. 725 (Sup. Ct.) (Rule 52(b) and the discretion to correct plain error)
- United States v. Henry, 797 F.3d 371 (6th Cir. 2015) (holding that a failure to require advance knowledge of a gun for § 924(c) aid/abet liability is error)
- United States v. Davis, 750 F.3d 1186 (10th Cir. 2014) (discussing when a general aider-and-abettor instruction suffices post-Rosemond)