*1 they argue, that neither govern- ment for murder were Defendants also and the committing charged dispute, nor convicted ment not does that this error af- that their be vacated and seek sentence rights. fected their substantial It appears Because both Alberto and remanded.16 that because the district court thought that object during and Gabriel failed to statutory sentence was life imprison- hearing sentencing to the district court’s ment, it felt bound to impose life sen- statutory regarding misstatement sen- agree tence. We that this affected the carjacking, plain tence for our review is below, of the proceedings outcome and ad- González-Castillo, error. United v. States ditionally, that the district court’s error (1st Cir.2009). Under fairness, compromise threatened in- review, plain for this Court to cor- error tegrity, public reputation pro- and objected rect error to in district ceedings. We thus hold Alberto and court, “there must be an ‘error’ that is Gabriel’s sentence should be vacated and ‘plain’ and ‘affects substantial for resentencing. remanded Olano, rights.’” U.S. 123 L.Ed.2d III. Conclusion omitted). (1993) (alteration If those discussed, For affirm, the reasons we met, all three factors are this Court has the judgment against Félix Alberto Cas to correct error if it discretion “seri- tro-Davis and Félix Gabriel Castro- fairness, ously integrity, affects the Davis’s but reverse and remand their sen public reputation judicial proceedings.” tences. (internal at 736 quotation Id. marks and Affirmed, Reversed and Remanded. omitted). alterations find that all four We requirements are met in this case.
The concedes that the
district court committed error plain during
the sentencing hearing agrees and vacating America, this error warrants UNITED Alberto’s— STATES of by adoption, and Gabriel’s—sentence Appellee, and remanding the case to the district court for resentencing. The district court referred FIGUEROA-CARTAGENA, to the defendants’ crime conviction as Defendant, Appellant. degree “first murder in the context of No. 08-2110. carjacking.” compound court district ed stating its mistake also than more Appeals, United States Court of statutory penalty one occasion that the First Circuit. imprisonment. the crime was life This Nov. Heard statutory penalty was incorrect since July Decided for carjacking resulting “any in death is years up number of life.” 18 U.S.C. 2119(3). argument
16. Gabriel to make sentencing failed in his court erred the defendant to a brief, normally mandatory which would mean it would life term for murder where was he Zannino, carjacking resulting be waived. See United convicted of a in death. (1st Cir.1990). On we October Because find that Alberto are Gabriel 2009, just argument, oral legal position, before Gabriel filed the same factual it, requesting join justice compel motion with this court interests adopt argument grant Alberto's that the district Gabriel’s motion.
Rafael Castro-Lang, F. appellant. Meconiates, Julia M. Assistant United Attorney, States with whom Rosa Emilia Rodríguez-Vélez, Attorney, Pérez-Sosa, and Nelson Assistant United Attorney, States were brief for appel- lee. TORRUELLA, BALDOCK,*
Before LIPEZ, and Judges. Circuit LIPEZ, Judge. Circuit Appellant Neliza Figueroa-Cartagena (“Neliza”) guilty aiding found and abetting resulted in death, 2119(3); § 18 U.S.C. conspiring to carjacking, 371; commit that § 18 U.S.C. aiding abetting carriage or use of a firearm during carjacking, 18 * Circuit, sitting by designation. Ofthe Tenth to withdraw 924(c)(1)(A)(ii). and Alberto left two co- and Gabriel She
U.S.C. ATM card. money using Pérez’s defendants, Castro-Davis Félix Gabriel (“Gabriel”) Alberto Castro- and Félix Pérez, grew ner- watching José While (“Alberto”), their convic appealed Davis urge him to and called Gabriel to vous including grounds, on a number tions phone answered the hurry. Neliza separate In a of the evidence. sufficiency they nearby.2 Just after him were assured of Al the convictions we affirmed opinion, ended, however, Pérez the conversation and Gabriel. berto attempted the car and jumped 08-2109, Castro-Davis, 08-2108, Nos. unsuccessfully tried to force escape. José *4 Cir.2010). (1st. WL 2794360 car, struggle into the and him back carjack opinion, this we affirm Neliza’s Gabriel, Alberto, and Neliza until ensued and reverse conspiracy and convictions ing Pérez. In the mean- arrived and subdued firearm conviction.1 her time, approached the neighbors several inquire to the noise. Neliza house about
I.
involved,
get
to
and she and
told them not
gate
prevent
to
them from
closed
Gabriel
in
facts are set forth
underlying
The
approaching.
companion opinion,
in
detail
Castro-Davis,
08-2108,
Nos.
08-
gas
fight
went to a
station after the
José
II.
helped
princi-
aiders
abettors who
appeal,
challenges
On
the suffi- pal before the basic criminal event took
ciency
supporting
of the evidence
her con-
(4)
place; and
fact,
accessories
after
that the district court
victions
claims
persons
helped
principal
who
after the
*5
evidentiary
proce-
made a number of
basic criminal event took place.” Gonzales
that
a
dural errors
entitle her to new trial.
Duenas-Alvarez,
183, 189,
v.
549 U.S.
127
turn,
arguments
of
We address each
her
815,
(2007).
S.Ct.
We review novo the district court’s among categories. de tions first three judgment denial of Neliza’s motion for of The now that provides statute such v. acquittal. Thompson, participant United States 449 punishable principal.” “is as a (1st Cir.2006). 267, inquiry 2(a); F.Sd 275 Our § 18 U.S.C. v. United Standefer whether, taking light States, the evidence 10, 19, 1999, 447 100 U.S. 64 verdict, (1980). most to a favorable reasonable However, Congress L.Ed.2d 689 her guilty factfinder could have found be- category chose retain the fourth —acces- yond a reasonable doubt. Id. sory separate after the fact—as a class differently whose “offense is distinct and is Carjacking A. punished.” States, Bollenbach v. United challenge her carjacking 402, Neliza’s con 326 U.S. 66 S.Ct. 90 L.Ed. viction focuses on what we have called the 350 may Accessories after the fact “temporal limits” the crime. Ramírez generally imprisoned “not more than States, 23, v. Burgos United 30 n. imprison- one-half the maximum term of (1st Cir.2002). that in 9 She claims her prescribed punishment ment ... for the volvement, any, Ga with Alberto and principal.” 18 U.S.C. 3. began criminal scheme long
briel’s after temporal boundary those two had seized Pérez’s car. In her between view, abettors, there was no basis for the on principals and aiders hand, fact, conclude she aided and abetted the one and accessories after the hand, not possible important because it is to aid the other thus remains already and abet crime that has been federal criminal law. On each side of that boundary a separate sepa- committed.4 lies offense with however, passing suggests develop argument, 4. Neliza also that she did and we requisite not have the intent to commit the therefore deem it waived. United States v. Zannino, (1st Cir.1990). carjacking. any attempt has made F.2d She 17 punishment. separate elements and rate (1949) added); Avants, (emphasis see v. F.3d States L.Ed.
United (5th Cir.2004). Morales-Cartagena, of that consequence One also United States person Cir.1993) “a can- enduring is that (“[Aiding distinction aiding abetting guilty found not be agency in which abetting is form already has committed.” been crime criminally re the law holds defendant Hamilton, 334 F.3d an and conduct of sponsible for acts (2d Cir.2003); Papa, 555 F.3d SEC v. though person even the defendant other (1st Cir.2009). 31, 36 personally every committed may not have constituting alleged.”).6 In the offense act implications for point important has This case, if there no evidence liability. fully To understand Neliza’s a careful and Alberto in their implications, we must draw aided Gabriel those she (either “offense” of car- distinction between the conduct performance of the offense Like jacking fact), and the offense conduct. during fact before the or crimes, composed many carjacking is conviction cannot stand. Cf. types different of elements: several (8th 1150-51 Cir. Delpit, 94 F.3d (the taking of a motor offense conduct 1996). presence person from the
vehicle argu- premise The factual of Neliza’s byor intimi- another force and violence she did not become involved ment —that (the dation), mental intent to cause state until after Gabriel and Alberto seized the harm), bodily an attend- death serious *6 sign Neli- car—is also sound. first of (the transportation of the ant circumstance episode in the criminal za’s involvement commerce), foreign in interstate or vehicle her phone a call she made to brother was and, carjacking, for a aggravated conse- July of ask- evening José on the (serious death).5 quence bodily injury or speak ing step him to outside the house to aiding purposes abetting of and liabili- For of the vehi- with Gabriel.7 But seizure ty, is of it the duration conduct offense earlier, in occurred several hours matters, cle aiding abetting since the and to late-afternoon. There was no evi- mid- responsi- a rule of criminal statute “states might what Neliza have suggesting for one in dence bility acts which assists another doing & been at the time of seizure or performing.” Nye Nissen mission, LaFave, § Wayne principal.” See 1 Crimi is 18 U.S.C. R. Substantive added). (2d (1940) 2003) (emphasis (distinguishing § Law ed. The current lan- nal 6.1 "acts,” guage part of "surrounding circum was substituted the 1948 re- between stances,” apparent “consequences”); 18. It from and Model Penal codification Title is 1.13(9) (2001) (dividing change § was the Revision Notes that the in- "elementfs] Code "conduct,” § stylistic only. categories: See 18 U.S.C. an offense” into three tended to be 2(a) circumstances,” ("Section comprises "attendant and Revision Notes "result[s] U.S.C., ed., conduct”). of Title without change except phraseolo- in minor matters of gy-”)- aiding Although abetting current point by speaking this in statute obscures dispute. aiding precise an 7. The time is matter of terms of the commission of "of- fense,” "getting that was dark” when conduct was ex- José testified it focus offense called, statute, he around plicit Neliza which estimated was in the former version provided: p.m. pointed directly It was later out that sun which "Whoever commits 6:00 p.m. during significantly 6:00 any constituting any act in later than offense defined sets aids, abets, time in Puerto Rico. The exact law of the United coun- the summer commands, induces, sels, present procures purposes. its not critical com- said, entangled carjack- in light. when she became As we have an individual who attempted ing government scheme. The on the arrives scene after the offense con by arguing fill at trial gap duct has ended cannot be held liable as an “somebody” must have driven Alberto and aider and But when abettor. the criminal Cayey from to the scene of the Gabriel time, period conduct extends over a Caguas: “They didn’t walk “may aiding latecomer be convicted of Caguas. Cayey to Salchichón abetting even did not [she] learn there, Somebody them took and that some- inception knowingly crime its but assist Figueroa-Cartagena.”8 But one is stage.” ed at a later United States v. presented no evidence to (2d Cir.2006). Reifler, 446 F.3d say, support theory. Al- Needless and Gabriel could have berto arrived participation fits within the ways, Caguas they number of category. precedent, latter our Under may they sought Neliza’s aid after carjacking offense conduct ongo remained theory government’s seized the car. The hostage while Pérez was in the car conjecture, pure which cannot form the many hours after Neliza became in basis for criminal conviction.9 United time, During volved. sig Neliza lent Spinney, nificant aid to Alberto and Gabriel: she Cir.1995). them to allowed hold Pérez her parents’ It would seem to follow that Neliza’s house, helped she recruit her brother as a conviction cannot stand because there is guard, and she warded off neigh curious participated insufficient evidence that she “merely present” bors. She was not at the in the offense conduct. But crime; scene aid essential third, that conclusion rests on unstated scheme, the success may she assumption: that the offense conduct for therefore be held liable as an aider and carjacking begins and ends when the vehi Peña-Lora, abettor. United States v. *7 circuit, least, is first In our cle seized. (1st Cir.2000) F.3d (affirming 28-29 that not law. We is the have held that conviction where defendant aided and carjacking hostage, victim is taken when hostage-taking by bringing abetted meals “the carjacking [the] commission contin hostage letting the and him out to use carj ues least while the acker maintains restroom); the 2 Wayne see also R. La- control over the victim [his and her or] Fave, Substantive Criminal Law 13.2 Ramírez-Burgos, car.” F.3d 30 n. (2d 2003) (noting an ed. that aider and 9; accord United States v. Lebrón-Cepeda, may abettor “facilitate the get crime Cir.2003) curiam); (per ... ting possible away witness [a] the Matos-Quiñones, States v. United scene”). (1st Cir.2006) (dictum); F.3d 19 n. Martinez-Bermudez, United States v. B. The Dissent (1st Cir.2004) (dictum). 98, 101
F.3d gloss argues That on the stat The dissent that it is a due argument process ute casts in a Neliza’s different violation to affirm Neliza’s convic- Indeed, II.B, explain fully infra, government As more in Part the has made little ef- theory appeal, government’s choosing fort to defend this on only this was not factual among instead to obscure the distinctions argument about involvement. by referring generically defendants to them as "appellants.” statute, jury and the instruction Figueroa her at the tion on conduct based that same lan- carjacking repeated It on respectfully disagree. is We house. (“Whoever, § 2119 See 18 guage. a criminal U.S.C. cannot affirm true that “we or serious the intent to cause death theory not with the basis of conviction on that has bodily harm a motor vehicle takes jury....” Chiarella presented to in shipped, or received transported, been from the foreign commerce But that is interstate L.Ed.2d 348 person force and jury presence another because was problem not a here ”). The in- byor intimidation.... Neliza’s violence specifically invited to consider turn, in aiding abetting, struction on The at the house. conduct suggested that broadly worded and that should be was argued closing Neliza’s conduct could entire course of an aider and abettor convicted as jury example, be For was part based in on that considered. carjacking offense defendant, conduct, particular phone call to instructed that including “[a] José aiding under and abet- neighbors. responsible be and her intervention with directly gov- underlying engaged ting, perform need Neliza’s counsel act, per- be when it was argument closing present in her criminal ernment’s own formed, of all the details of ac- or be aware argument, questioning whether José’s guilty aiding at the house the execution count of Neliza’s involvement Thus, range abetting.” government emphasized the whole was reliable. closing argument by its put jury. point list- Neliza’s conduct was before asserting: government’s ing It no all of Neliza’s conduct is of moment Gentlemen, is part unsupported “Ladies and called aid- case rested (i.e., abetting. have to put that Neliza She didn’t factual assertion drove they tape [Pérez’s] where around face. She Alberto and Gabriel the site vehicle). abetted helped As the dis- them. She aided and first seized Pérez’s acknowledges, they doing. what were sent we cannot overturn the them. She knew it, might standing to benefit from and verdict because it been based She factually theory. just responsible under the law as unsupported on a she Cockrell, they are.” Santellan v. (5th (“The Cir.2001) Supreme Court has circumstances, even Under option given ruled where a *8 explicit jury of an instruction that absence factually adequate of choosing between carjacking the the offense conduct of guilt, factually inadequate theories of charge while Pérez was held continued
jurors analyze well equipped ‘are to the car, hostage jury presented in the the upon can to evidence’ and be counted base theory the could be con- with that Neliza factually upon adequate the their verdict on carjacking victed of based her conduct States, theory.”) v. United (quoting Griffin ample opportuni- at the house. Neliza had 502 U.S. 112 S.Ct. 116 L.Ed.2d ty legal the factual and basis for rebut (1991)). however, Ultimately, the theory. jury government’s nor chose to believe the version
Importantly, neither the indictment on that basis Affirming limited of the facts. the instructions this broad “right Neliza’s entirety infringe conduct. therefore does not focus on the Neliza’s charges specific on the general be heard The indictment was framed which is accused.” Dunn v. United language [s]he terms that tracked the the States, 100, 106, 442 U.S. Statutory “Taking” Text — (1979).10 L.Ed.2d liability turns on whether Gabriel Alberto’s offense con conduct Reconsidering the C. Abduction Rule11 long tinued as hostage as Pérez was held or it point. whether ended at an earlier Although disagree I dissent’s the (and To determine long) whether of how argument carjacking that Neliza’s convic- capable fense continuing, conduct one tion cannot be affirmed under our current must look at explicit “the language carjacking I jurisprudence, must acknowl- substantive criminal statute” the “na edge my about the correct- reservations ture of the crime involved.” Toussie v. jurisprudence. ness of that The notion United carjacking conduct for the offense 25 L.Ed.2d I address carj “while the acker maintains continues section, statutory text in focusing this on control over the victim and his or her car” meaning and duration of a “taking.” holding is essential to the that Neliza was following section, I consider the properly convicted as an aider and abettor. possibility that carjacking byis “nature” a That construction of the stat- crime capable that is of continuing after ute, I which will refer to as abduction taking has ended. rule, been repeated has numerous cases federal statute author- in this circuit support and finds several the punishment who, izes of any individual Nevertheless, cases from other circuits.12 interpretation basis has never with the intent to cause death or serious explained been and does not appear be bodily harm takes a motor vehicle that firmly grounded statutory text or has transported, been shipped, or re- the relevant law. Although panel case ceived in interstate or foreign commerce here, to apply is bound the abduction rule person or presence of another I believe the issue would benefit from re- by intimidation, force and violence or explain my view the full court. view. attempts to do so.... separate point
10. The dissent also
raises
merit. We will not reverse what is otherwise
government
fully developed
not
has
valid
conviction
because
appeal
argument
that Neliza’s convic-
poor job writing
has done a
its brief.
tion
can
affirmed based on her
conduct
acknowledge
govern-
We
house.
that the
noted,
already
Judge
11. As
Baldock does not
briefing
unhelpful
ment’s
is rather
in that
join
portion
opinion.
me in this
There-
regard
perhaps
and that
could
deem the
fore,
person
I must resort to the first
in de-
argument
to be
abandoned
forfeited. See
However,
my
scribing
Judge
views.
Torru-
Molina,
Vega
separate
ella
opinion,
makes clear in his
he
("Under
Cir.2005)
the circumstances
agrees
analysis
with most of the
here.
case,
govern-
we choose
do the
*9
homework.”).
potential
ment’s
But
forfei-
9;
Ramírez-Burgos,
12. See
313 F.3d
30
n.
arising
poor appellate briefing
tures
out of
61;
Lebrón-Cepeda, 324 F.3d at
Matos-Qui
appropriate
can be excused under
circum-
ñones,
4;
18 U.S.C. “taking” proper of a from or her forcible ration of the victim carjacking is the of pres occurs, through or person “from the it continues ty vehicle and motor (or “caption,” consummation.”). “Taking” another.” A few cases ence of forcible called) law term a common as it also is theory was applied that the federal have robbery of and from the law of art derived statutes, see, v. robbery e.g., United States “securing act of larceny. It refers (11th 1514, Martin, F.2d 1518 Cir. 749 LaFave, 3 su something. dominion” over 1985) (“The contemplated by ‘taking’ [the E. Tor 19.3(a); 3 Charles § see also pra, complet is not Robbery Act] Bank federal (15th cia, § Law 357 Criminal Wharton’s being of item possibility ed until ‘the 2009) (“There caption when the ed. a ended,” which “continues so recovered’ has pos takes possession. takes He defendant of flight possibility occurs from long when he exercises dominion session (quoting United States v. pursuit.”) hot “Taking” property.”). over the control (8th 33, Cir.1975)), Jarboe, 37 (or “as “carrying away” was distinct from language cases have used similar some separate was a element portation”), which statute, see, the context proper until not occur could after Wright, 246 F.3d e.g., v. United States Torcia, supra, “taken.” 3 ty had been Cir.2001) (8th 1123, (“‘Taking’ for 1126 law, Thus, taking at common was acquisition of section 2119 is ‘the purposes had secured once the defendant complete possession, the robber of dominion quest property initial control over property period of control of the some ion.13 ”) Moore, v. (quoting time.’ adopted cases Some modern (6th Cir.1996)). 73 669 until “taking” continues view that to have en- Supreme Court seems “complete and ex- defendant has achieved “taking” understanding a narrow dorsed property, over the which clusive control” leading Holloway case. in a may time after the initial seizure. be some noted that the the Court States, 861 21 v. United A.2d Jacobs component carjacking statute’s “mens rea (D.C.2004), opinion vacated judgment and act ‘tak[ing]’ ... modifies the motor (D.C.2005). reissued, 510 886 A.2d It factfinder’s atten- vehicle. directs the theory, ‘taking’ is not com- Under that “a mind state of tion to defendant’s say, has not come an plete is to —that he took precise moment demanded or con- perpetrator has neutralized end—until the ‘by car force and violence or trol over the with his or her immediate interference ” intimidation.’ 526 U.S. Mitchell, 382 S.C. possession.” State (internal passage That (2009) 143 L.Ed.2d cita- S.E.2d taking” seizing “act of omitted); equates the quotation marks see tions and Webster, suggests control of the vehicle and People also 54 Cal.3d (1991) “precise moment.” Of act occurs at Cal.Rptr. 814 P.2d simply robbery, subsequent.”); the fear Tor scope taking 13. The ("At law, cia, supra, § common ... force Because use force academic matter. (putting a taking threatened force victim fear with the or fear had to coincide law, robbery understanding injury) only if it is used to amounts common the narrow possession property from of anoth scope significantly 'take' taking restricted the Blackstone, Force or threatened force used thereaf er. robbery. William Commen *10 * ter, prop ("[I]f sixpence possession in order to retain of privately 242 steals one taries another, escape, not erty taken to facilitate does person afterwards fear, qualify.”). is keeps putting it him in this no
79
227, 235,
course, Holloway did not involve an extended
119
U.S.
S.Ct.
143 L.Ed.2d
carj
(1999)
acking/abduction
like this case.
(noting
311
“carjacking
that
is a
(“[T]he
n.
at 4
2. Nature of This adopted court a similar construc- tion of the carjacking statute in that noted above certain offense con- Martinez-Bermudez, States v. 387 F.3d may duct be deemed to “the continue (1st Cir.2004). Reasoning nature of the is in that case crime involved such that assuredly “flight Congress must have intended vehicle with the is inherent to the continuing it be treated as one.” crime” carjacking, we held that a car- Toussie, 858; U.S. S.Ct. see jacking continues at until perpe- least Rodriguez-Moreno, also United States v. way trator “has won his to a place of temporary safety.” at 102. There Id. is (1999) (“[W]e L.Ed.2d 388 have never be- to question interpretation no need held, here, fore and decline to do so well-grounded robbery here. It is in the verbs are the sole consideration in identi- case law and is consistent with familiar fying the conduct that constitutes of- principles of criminal law. See United fense.”). then, possible, It is that the du- DeStefano, States v. 4 & n. 5 a carjacking might beyond ration of extend (1st Cir.1995). event, application taking the initial if it “nature” rule, temporary applied, if it safety continuing offense. enough support would not be robbery case law instructive conviction this case because the evi- point. suggest helped See Jones United 526 dence does not that she Pike, (9th 14. The Ninth Circuit has taken the ed somewhat Cir.2007). robbery view narrower that a continues until period pursuit” "hot has ended. Unit *11 80 Finally, legislative extent that the to the escape from the scene and Gabriel
Alberto
Congress’s in
light on
history may shed
carjacking.
of the
simply
tent,
Congress
it
that
was
seems
has
Supreme Court
The California
carjacking/ab
thinking
not
about extended
safety
in a
temporary
rule
broadened
See, e.g.,
§
it
when
enacted
ductions
In Peo
to this case.
way that is relevant
(1992)
1,
102-851,
at
H.R.Rep.
pt.
15
No.
Stankewitz,
51 Cal.3d
ple
(“In
carjacking’], two or three
‘armed
[an
(1990),
the de
Cal.Rptr.
P.2d decline to Precedent First Circuit rule, in the escape applicable context abduction rule ancillary robbery, origins consequences certain raise about its va- determining and this circuit also doubts purposes aider developed the rule in two liability.”). lidity. abettor We *12 Ramírez-Burgos v. plaining why cases: United those harms properly were (1st Cir.2002) 313 F.3d United in punishing defendants, considered the we (1st Lebrón-Cepeda, 324 States v. expansively construed the carjacking stat Cir.2003) curiam). (per Ramirez-Burgos ute, holding that “the commission of a bodily raised the issue of when serious carjacking at continues least while the car injury from a “results” within jacker maintains control over the victim 2119(2). meaning § of Le U.S.C. and her Ramírez-Burgos, car.” 313 F.3d brón-Cepeda raised the of related issue at 30 n. gave explanation 9. We no further killing when a is “committed in the perpe that statement and cited a prior First tration of’ a of purposes that, scrutiny, Circuit case on closer does statute, felony murder 18 U.S.C. provide not seem to the necessary support. § 1111.15 (citing Vázquez-Riv Id. era, Cir.1998)).16 135 F.3d assump
We decided both
on
cases
that,
punishable,
bodily
tion
to be
a serious
retrospect,
In
Ramírez-Burgos and Leb
injury
killing
or
must occur while the of
rón-Cepeda may have rested on an erro
fense
continuing.
conduct is still
See Ra
premise.
interpreting
neous
Cases
similar
(The
mírez-Burgos,
term
criminal statutes have not taken the view
“injuries
“results” includes
that were
an injury
that
or killing must happen while
carjacker
caused
the actions of the
the offense conduct is
continuing
still
to be
any
during
time
the commission of the
punishable.
carjacking.”); Lebrón-Cepeda, 324 F.3d at
(“Lebrón
example,
For
many
of the
concedes that the
criminal
success
stat-
challenge
containing
to the
utes
an “if
application
bodily
serious
injury
[felo
ny]
results” or “if
depends
murder cross reference
death results”
provision,
our
that
not
finding
killing
Fontánez
am
aware of
did
that have been inter-
occur during
preted
not
the carjacking.”). Both
to mean that the offense conduct
long
cases involved harms
technically
that occurred
must be
ongoing at the
time
after the vehicle had
In
injury
Instead,
been seized.
ex-
death.
the applica-
precisely, Lebrón-Cepeda
imposing
15. More
raised the
the enhancement when the car-
Sentencing
jacking
bodily injury,”
issue in the context of the
sup-
Guide-
"involves
which
cross-reference,
ports
injuries
lines
view
keyed
murder
which is
that the
covered are
resulting
limited to those
murder
statute.
from
"tak-
U.S.S.G.
vehicle,
(“If
2B3.1(c)
ing”
a but also
§
include those
a victim was killed under cir-
carjacker
any point during
caused
that would
cumstances
constitute murder un-
his or her retention of the vehicle.
killing
der 18 U.S.C.
such
had
taken
(internal
omitted). Although
Id.
citation
place
juris-
within the
territorial maritime
suggested that
implicated
our discussion
States, apply §
diction
2A1.1
“temporal
carjacking,”
limits of
crime of
(First
Murder).”).
Degree
it is
discussing
clear
we were
the neces-
sary causal connection between the offense
Vázquez-Rivera,
we held
“if
that the
resulting
bodily
conduct and the
inju-
serious
bodily injury
provision
serious
results”
is not
"
ry.
Lebrón-Cepeda,
Id. But see
“willingly took some
They
talked
told me that she
Mother:
v. Medi
or use.” United States
carrying
talking
really
about
bad—that she
Cir.2004).
na-Román,
statement,
I saw
sworn
Alberto:
frankly
to under
are
loss
We
I
say.
went
that’s all
have to
supported
could
stand what evidence
yesterday.
court
As
under that standard.
finding
guilt
the intro
said,
argues
is no evidence that
there
we have
*15
of
phone
seizure
conversation violated
involved in the initial
duction
Neliza was
Clause,
Moreover,
evidence
rights
while there is
under the Confrontation
the car.
throughout
pros
all criminal
provides
“[i]n
carried a firearm
that Alberto
which
ecutions,
enjoy
right
evidence
there is no
the accused shall
episode,
the entire
the firearm or
witnesses
was aware of
...
be confronted with the
Neliza
The
any steps to facilitate
amend. VI.
against
that she took
him.” U.S. Const.
government
The
v.
carrying
Supreme
the firearm.
Court’s decisions Crawford
1354,
regard.
It
us at all in this
Washington,
has not assisted
541 U.S.
S.Ct.
(2004),
argument
Neliza’s
Davis v.
either overlooked
Alberto: Neliza is the one who’s
one,
trials like this
In multi-defendant
Really?
Mother:
layer
analysis may be nec-
additional
prosecution seeks to
essary.
I saw the sworn statement.
When
Alberto:
unnecessary to
those issues.
makes it
address
that the conviction cannot stand
conclusion
made
guilt)
(as-
introduce
statement
one
improper
not the
purpose
defendants,
typically
the statement will
sessing the
guilt).
co-defendant’s
See id.
(the
against that defendant
admissible
de
206-07, 211,
B. Gabriel’s only fact about Neliza agree. raises Confrontation also Neliza indirectly through directly or revealed respect to the trial challenge with Clause was the existence statement Gabriel’s agent Eric Gonima. testimony of FBI But that relationship with Gabriel. recounted the de- testimony, Gonima his already well-established relationship was he conduct- interview post-arrest of a tails testimony testimo- and the through José’s in- all Gabriel denied ed Gabriel. add- Gabriel’s statement ny neighbors. killing with the volvement regard. information in that no new ed briefly men- in the interview. He Pérez admitting the statement with- error Any had Neliza, acknowledging that she tioned was harmless instruction limiting out that he knew her girlfriend been doubt. very beyond reasonable though “not well.” family, dis- it erroneous argues that was testimony without admit the trict court to Peremptory Challenges C. jury that Gabriel’s state-
instructing the pro- the district court’s Neliza criticizes considered as evidence ment could peremptory chal- exercising cedure Richardson, 481 U.S. at against her. See Because she did not lenges at voir dire. objected she 1702. Because objection, re- contemporaneous we make trial, de novo. review her claim for plain view error. Molina, Vega States v. (1st Cir.2005). 511, 519 Procedure Federal Rule Criminal un- to the FBI was Gabriel’s statement regular peremp- forth number sets testimonial, doubtedly and it therefore parties may exer- tory challenges that *17 scope of the Confrontation falls within grants them several “additional” cise and ask at ordinarily would this Clause. We only be used to re- “may that challenges “inculpa- was whether the statement point jurors.” We have inter- move alternate respect Neliza. tory on its face” preted the rule to mean that the district to undertake 520. There no need Id. at designate particular members must court here, however, because the inquiry ju- prospective of the alternate venire that even government concedes parties’ limit the additional rors and must admissible, it was error statement was group. See United challenges to limiting instruction. admit it without González-Meléndez, States v. (“Supreme Court case law id. at 521 See Cir.2010). (1st failed The district court ordinarily the trial court makes clear that procedure in this case. to follow jury that one defen- instruct should parties’ regu- separating than Rather may not confession be dant’s out-of-court strikes, it additional lar strikes from their joint in a against codefendants used his to exercise all their required parties trial.”). an undifferentiated against at once strikes jurors. That was er-
Nevertheless,
panel
prospective
government
ror,
concedes.
as the
was harm-
says, the district court’s error
person
(Neliza's)
in the declar-
against
penal
that a reasonable
...
was
conversation
have made
state-
inquiry,
position would not
ant's
That is
the relevant
interest.
(em-
804(b)(3)
believing it to
true." Id.
requires
district
ment unless
however. Rule
added).
argument on
makes no
phasis
Neliza
at issue
to ask whether the statement
court
issue,
it with-
we
address
decline to
subject
”—in
far tended to
the declarant
"so
briefing.
case,
liability
out the benefit
... criminal
this
Alberto—"to
Nevertheless,
note,
Neliza has not
tions. The
which was made part of
prejudicial.
that the
record,
shown
error was
stated that the jury would like
Olano,
U.S.
to “hear again
phone
conversation be-
(1993)
123 L.Ed.2d
tween
[Alberto]
his mother.” The dis-
(plain error
generally requires
standard
entry
trict court’s minute
day
from that
that the
“af
defendant
show
error
indicates that the note was “received and
fected
outcome
district court
counsel,”
discussed with
but there is no
proceedings”).
argues
She
that she suf
action,
indication what
if any, was taken in
prejudice
regular
fered
because one of the
response. The trial transcript contains no
jurors
replaced
was excused and
any proceedings
record of
involving the
rejected
juror.
alternate
We
that same
jury note.
argument on materially identical facts in
argues
that she was never in
González-Meléndez,
United States v.
a de
formed of the
Although
note.
the minute
52(a)
cision made under the Rule
harmless
entry
assertion,
contradicts her
she has
error standard:
included
the addendum to her brief an
...
distinguishes
Gonzalez-Melendez
e-mail in which her trial counsel denies
Brown,
[United States
Neliza’s final proceedings claim relates to relating jury to the note. a note sent the jury during may recur, delibera- Because this empha- issue we future, 24. jurors. This conclusion does not lessen our con- In the the district court should about cern the district court’s violation of the scrupulously comply with Rule 24. applicable rule to selection of alternate to jury per- to the presented tial evidence response in to proceedings again that size and Gabriel took mit it find that Alberto conducted on the should be jury note by violence or person car from his Ofray-Cam Pérez’s record. See Cir.2008) (describ intimidation, firearm, aid with the pos, 534 F.3d taking” “physical that sometime after this procedure); United proper (7th his car to José’s they brought Cir. Pérez and Rodriguez, 67 F.3d 753(b). See Castro- safekeeping.26 house for 1995); 28 U.S.C.
Davis,
08-2109,
08-2108,
2010 WL
Nos.
IV.
as to
To the relevant facts. absent Alberto, Gabriel, inquiry from the as Neliza’s and Neliza were indicted jointly.25 point at this José’s testi- charges the same and tried whereabouts mony.27 majority opinion As the makes and circumstan- enough There was direct transcript charged reading A of the trial evinces defen Count I of the indictment *19 "they” by (conspiracy copious use of the word both 18 371 to dants under U.S.C. witnesses, attempt with no carjacking), prosecution II and commit Count under 18 U.S.C. 2119(3) clarify "they” to abetting to referred (aiding §§ a made whether and 2 car Alberto, Neliza; death), Ga- Gabriel and Alberto and jacking resulting and Count III briel; (us 924(c)(1)(A)(ii) the three. §§ 2 or some other combination of 18 U.S.C. under fact, José that Gabriel and carrying when testifies a firearm in connection with a house, prose- brought Alberto Pérez carjacking). (who José cutor does ask whether Neliza to come out of his "physical taking” had testified had called him I will refer as time Gabriel) came Al- period during carj house to receive also with acker obtains which Instead, prosecutor possession of a vehicle while in the berto and Gabriel. motor case, you present "Okay. were told that presence next asks José: So of another. In the going to ATM taking” Gabby and were "physical once Pérez and his whoever ended added). ma- by (emphasis ....” As the captured carjackers were and one machine car out, jority points seems began of them to drive it. clear, the first time there was evidence conduct of carjacking ongoing long so as carjacker that Neliza learned of the “the maintains control over the many “physical taking” hours after the of victim [his car.” Maj. her] See Op. Pérez and his car.28 at (quoting Ramírez-Burgos, 313 F.3d 9). n.30 law, majority
As the
well-states the
a
person
guilty
aiding
cannot
found
not disagree
be
do
majority’s
abetting
law,
that already
reading
crime
has been
of our
although
case
I have
31,
v. Papa,
committed. See SEC
555 F.3d
serious reservations about the correctness
(1st Cir.2009);
Maj.
Op.
First,
see also
at 73- of the
major
abduction rule.
as the
Similarly
conspiracy.
ity explains,
See United
the abduction rule was
O’Campo,
grounded
973 F.2d
on a case that does not actually
(1st Cir.1992) (“Under
support
the doctrine of
it.
Ramírez-Burgos,
313 F.3d
(1st
Pinkerton
United
Cir.2002)(citing
n.
645-46,
a theory presented which was never to the join
jury, upholding cannot her convic-
tion as to the other two counts. MAKALO, Petitioner,
Ansumana HOLDER, Jr., Attorney
Eric H.
General, Respondent.
No. 09-2034.
United States Court of Appeals,
First Circuit.
July 19, 2010.