UNITED STATES OF AMERICA, Appellee, v. JOMAR HERNÁNDEZ-ROMÁN, Defendant, Appellant.
No. 18-2133
United States Court of Appeals For the First Circuit
December 1, 2020
Selya, Circuit Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]
Jason González-Delgado on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Alexander L. Alum, Assistant United States Attorney, on brief for appellee.
I. BACKGROUND
We sketch the relevant facts and travel of the case, taking those facts in the light most congenial with the verdict. See, e.g., United States v. Santiago, 83 F.3d 20, 23 (1st Cir. 1996); United States v. Taylor, 54 F.3d 967, 971 (1st Cir. 1995). On November 29, 2014, three armed individuals robbed a Banco Popular branch in Bayamón, Puerto Rico, making off with more than $64,000. In an attempt to distract the authorities, they had dropped packages containing fake bombs at ATMs outside of two other banks (one at Lomas Verde and one at Bayamón City Hall).
Toward the end of the next month, the authorities detained the defendant. While in custody, he stated that on the day of the robbery, he and a friend ran some errands and went shopping for some sneakers. But this was not his first shopping trip: it turned out that four days earlier, he and an alleged coconspirator, José Padilla-Galarza (Padilla), had gone to two Party City stores and a Home Depot. In the course of this excursion, Padilla purchased various artifacts, including black gloves and fake facial hair, which a jury could reasonably have concluded were used by the robbers.1 Video surveillance recordings from the stores’ cameras corroborated these purchases.
As the interview progressed, the defendant confessed. He admitted that he had hosted multiple meetings at his home, during which the plot to rob the bank was hatched. He also admitted that he had surveilled the bank on behalf of the conspirators; that he knew of the scheme to deploy fake bombs to divert the attention of the authorities; and that, after the robbery, he had returned a shotgun used by the robbers to Padilla. Another witness corroborated the fact that planning meetings had taken place at the defendant‘s home.
In due season, a federal grand jury sitting in the District of Puerto Rico returned a five-count indictment that charged the defendant, Padilla, and three others with conspiracy to commit bank robbery (count 1), see
II. ANALYSIS
In this venue, the defendant advances what can be grouped as two claims of error. We address them sequentially.
A. Sufficiency-of-the-Evidence Claims.
At the close of the government‘s case in chief, the defendant moved for judgment of acquittal. See
The defendant did not renew his motion for judgment of acquittal at the close of all the evidence. See
Before us, he attempts to launch a broad-gauged series of sufficiency-of-the-evidence claims. Specifically, he submits that the government failed to prove either that he possessed the requisite criminal intent or that he was physically present during the commission of any crimes of violence. This attempt is doomed. The denial of a
There is no hint of any clear or gross injustice here. After all, it is common ground that there can be no clear and gross injustice if the evidence, scrutinized in the light most congenial with the verdict, can support a finding of guilt beyond a reasonable doubt. See Taylor, 54 F.3d at 974. The evidence in this case easily clears so low a bar. We explain briefly.
To sustain a conviction for conspiracy under
In the case at hand, the defendant admitted to hosting meetings at his home, during which the robbery was planned. He also admitted that he participated in surveilling the bank and that he delivered a shotgun that had been used in the robbery to one of his confederates. What is more, he admitted that he knew about the scheme to deploy fake bombs and he even supplied the authorities with a diagram of the fake bombs. To cinch the matter, another of the charged coconspirators (Miguel Torres-Santiago) provided testimony that directly implicated the defendant as a member of the conspiracy. Assaying this evidence in light of the government-friendly standard of review, it was more than sufficient to sustain the defendant‘s conviction as to count one.
Nor need we linger long over the defendant‘s importuning that the evidence was insufficient as to count two because he “simply did not participate in the bank robbery.” The statute of conviction provides, in relevant part, that “[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, . . . any property or money or any other thing of value belonging to . . . any bank,” and who, in committing or attempting to commit such an offense, “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” commits
The defendant demurs, saying that he did not participate in the robbery and that “none of the government witnesses who participated in this robbery could put [him] inside the bank.” But the defendant is setting up a straw man: to convict the defendant under count two, the government was under no obligation to prove that he was physically present at the scene of the robbery. To the contrary, it is well-established that, by virtue of the jury‘s guilty verdict as to the conspiracy charged in count one, the defendant became substantively liable for the foreseeable acts of his coconspirators in furtherance of the conspiracy — including, in this case, the armed bank robbery. See Pinkerton v. United States, 328 U.S. 640, 647 (1946). As we have said, “a Pinkerton instruction exposes a coconspirator to criminal liability for the substantive crimes committed in the course of the conspiracy, regardless of whether he or some other coconspirator actually perpetrated the crimes.” United States v. Torres, 162 F.3d 6, 10 (1st Cir. 1998). Consequently, the defendant need not have been physically present inside the bank (or for that matter, in the vicinity of the robbery) in order to be guilty of the substantive crime of armed bank robbery. See id.
Seen in this light, it is nose-on-the-face plain that the evidence was sufficient to enable a rational jury to conclude beyond a reasonable doubt that the defendant was a member of the bank-robbery conspiracy and, thus, liable for the substantive armed bank robbery charge. His own words are telling: he admitted to conducting surveillance to facilitate the robbery, to handling a shotgun used in the robbery, and to accompanying Padilla while he acquired disguises worn by the robbers. From the defendant‘s admissions and other evidence in the record, a rational jury could find without difficulty that the defendant had acted in furtherance of a foreseeable robbery. See United States v. Hurley, 63 F.3d 1, 22 (1st Cir. 1995).
The defendant also tries to attack his Hobbs Act convictions. As relevant here,
The defendant‘s challenge to his Hobbs Act robbery convictions falter for reasons similar to those that undermined his challenge to his bank robbery convictions. To be sure, the defendant asserts that the evidence fails to establish any actus reus on his part to employ “actual or threatened force, or violence,” as required by
This leaves the firearms count (count 5). The defendant asserts that no rational jury could have found him guilty of violating
We have held that where, as here, Pinkerton liability is in play, “the defendant does not need to have carried the gun himself to be liable under section 924(c).” United States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir. 2004). Although the defendant may not have handled a firearm during the course of the robbery, the evidence makes manifest that he knew that firearms would be used at that juncture. Consequently, a rational jury could find — as this jury did — that the defendant was guilty of the firearms charge.
That ends this aspect of the matter. Given the evidence of record and the reasonable inferences therefrom, we are satisfied that nothing resembling a clear and gross injustice mars the defendant‘s convictions.
B. Claims Specific to the Firearms Offense.
The defendant has another shot in his sling.
In this instance, the defendant first challenges his conviction on the firearms count on the ground that the residual clause contained in the statutory “crime of violence” definition is unconstitutionally vague. In support, he notes that the Supreme Court has invalidated the residual clause of the Armed Career Criminal Act (ACCA), see Johnson v. United States, 576 U.S. 591, 596-97 (2015), and the residual clause contained in a section of the Immigration and Nationalization Act (INA), see Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018), as unconstitutionally vague.
The defendant posits that
We recently had occasion to confront a nearly identical claim of error. See United States v. García-Ortiz, 904 F.3d 102, 105-07 (1st Cir. 2018). On that occasion, we held that any conceivable infirmity in the residual clause of
For present purposes, we assume — as the defendant posits — that the residual clause of
In a variation on this theme, the defendant claims that he is entitled to a new trial because the jury did not make a specific finding as to which of the first four counts comprised the predicate offense for the count five firearms conviction. This claim was not raised below and, thus, engenders plain error review. See Duarte, 246 F.3d at 57.
The Second Circuit has squarely addressed such a claim. It affirmed a
So it is here. The jury found the defendant guilty of two counts relating to armed bank robbery and two counts relating to Hobbs Act robbery — all of which qualify as crimes of violence under
In a final jeremiad, the defendant implores us to reverse his firearms conviction because
III. CONCLUSION
We need go no further. For ought that appears, the defendant was fairly tried and justly convicted. The judgment below is, therefore,
Affirmed.