United States v. Fernandez-Jorge

• Court: Court of Appeals for the First Circuit
• Decided: June 26, 2018
• Docket: 15-1900P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit No. 15-1900

UNITED STATES OF AMERICA, Appellant,

v.

ÁNGEL GABRIEL FERNÁNDEZ-JORGE, Defendant, Appellee.

No. 15-1975 UNITED STATES OF AMERICA, Appellee,

BRIAN PÉREZ-TORRES, Defendant, Appellant. ____________________

No. 15-2001

UNITED STATES OF AMERICA, Appellee,

JOSÉ A. DE LA CRUZ-VÁZQUEZ, Defendant, Appellant. ____________________

No. 15-2104

EDWIN OTERO-DÍAZ, Defendant, Appellant. ____________________ No. 15-2168

ISAÍAS MENDOZA-ORTEGA, Defendant, Appellant. ____________________ No. 15-2244

EDWIN OTERO-MÁRQUEZ, Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Lipez, and Barron, Circuit Judges.

Víctor P. Miranda-Corrada, for appellant Fernández-Jorge. Ramón M. González, on brief for appellant Pérez-Torres. Humberto Guzmán-Rodríguez and Guzmán & Rodríguez-López Law Office, on brief for appellant De la Cruz-Vázquez. Edgar L. Sánchez-Mercado, on brief for appellant Otero-Díaz. Juan A. Albino-González, with whom Albino & Assoc. Law Office, PC was on brief, for appellant Mendoza-Ortega. Lauren E.S. Rosen, Assistant Federal Public Defender, with whom Patricia A. Garrity, Research and Writing Specialist, Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant Otero-Márquez.

- 2 - Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

June 26, 2018

- 3 - TORRUELLA, Circuit Judge. After a jury trial, Ángel

Gabriel Fernández-Jorge, Brian Pérez-Torres, José A. De La Cruz-

Vázquez, Edwin Otero-Díaz, Isaías Mendoza-Ortega, Edwin Otero-

Márquez, and Rafael Martínez-Trinidad (collectively, the

"Defendants") were found guilty of possessing firearms in a school

zone.1 The jury also found Mendoza-Ortega and Otero-Márquez guilty

of possessing firearms as convicted felons. All of the Defendants

then brought motions for acquittal, but the district court granted

only that of Fernández-Jorge. Now, the government appeals the

district court's grant of Fernández-Jorge's motion, while Pérez-

Torres, De La Cruz-Vázquez, Otero-Díaz, Mendoza-Ortega, and Otero-

Márquez (collectively, the "Defendant-Appellants") appeal the

district court's denial of their motions for acquittal. We also

consider whether the district court's jury instructions concerning

aiding and abetting liability were erroneous.

After considering all of this, we hold the following:

(1) sufficient evidence supported the Defendant-Appellants'

convictions for possession of a firearm in a school zone (Count

Three); (2) sufficient evidence did not support Fernández-Jorge's

conviction for possession of a firearm in a school zone; (3) the

district court's erroneous jury instructions on aiding and

1 Martínez-Trinidad elected not to pursue an appeal following his conviction.

-4- abetting liability require us to vacate the Defendant-Appellants'

convictions for Count Three; and (4) sufficient evidence did not

support the convictions of Mendoza-Ortega and Otero-Márquez for

possession of a firearm as convicted felons, which requires us to

reverse their convictions for Count One.

I. Background

We begin with a brief summary of the facts and procedural

events leading up to this appeal, into which we shall delve with

greater detail in taking up the various issues the parties have

raised. Because this appeal pertains, in part, to the Defendants'

motions for acquittal before the district court, we recount the

facts here "in the light most favorable to the government." See

United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018).

A. The shootout

A shootout took place in front of the Jardines de Oriente

public housing project, in Humacao, Puerto Rico, during the late

morning of February 16, 2012. Officers from the Puerto Rico Police

Department arrived at Jardines de Oriente shortly after the gunfire

stopped. They observed several people in dark clothing abscond -

- jumping the housing project's perimeter fence and entering the

large concrete tunnel behind the fence into which the Mabú creek

drains. That tunnel runs between the Jardines de Oriente and the

Rufino Vigo public elementary school (the "School"). It ends at

-5- the Doctor Palou public housing project. Officers positioned

themselves outside of the tunnel's entrance. Two men attempted

to escape from the top of the tunnel through a manhole. After

police fired a warning shot, one of these men, De la Cruz-Vázquez,

dove into some nearby bushes and was promptly arrested, searched,

and found to be carrying ammunition. The other man retreated back

down the manhole in response to the warning shot.

Meanwhile, the officers waiting at the entrance to the

tunnel heard voices and the sound of gunfire from inside the

tunnel. The officers ordered anyone inside the tunnel to exit

with their hands up. The six remaining Defendants -- all shirtless

and unarmed -- emerged from the tunnel and were arrested. Officers

then searched the tunnel and recovered seven firearms, ammunition,

and various articles of clothing. Ballistics analyses would later

link four of these weapons to the shootout at Jardines de Oriente.

Five of the Defendants stated that they lived at the

Doctor Palou public housing project, located at the end of the

tunnel opposite where the shootout occurred. Mendoza-Ortega lived

elsewhere in Humacao. Fernández-Jorge was not from Humacao, but

rather from San Juan.

B. The trials

In February 2012, a grand jury returned an indictment

against the seven individuals arrested in connection with the

-6- shootout. Count One of the indictment charged Otero-Márquez and

Mendoza-Ortega with possessing firearms as convicted felons, in

the principal and aiding and abetting forms. See 18 U.S.C. §§ 2,

922(g). Count Three accused all seven Defendants of possessing

firearms within a school zone, also in the principal and aiding

and abetting forms. See 18 U.S.C. §§ 2, 922(q)(2)(A).2

All of the Defendants proceeded to trial, and the jury

found all of them guilty on all counts. However, it then came to

light that, through unsanctioned research, one or more members of

the jury had discovered that two people died during the shootout.3

This forced the district court to declare a mistrial.

A second trial ensued, and the jury again found all

Defendants guilty on Count Three, and found Mendoza-Ortega and

Otero-Márquez guilty on Count One as well. The jury filled out

general verdict forms, which did not distinguish between the

principal and aiding and abetting forms of the charged offenses.

The Defendants proceeded to file motions for acquittal. See

Fed. R. Crim. P. 29. In an omnibus order, the district court

denied those motions in their entirety, except as to Fernández-

2 The district court granted the Defendants' motion for acquittal on Count Two of the indictment, possession of a stolen firearm, and the government did not appeal that decision. 3 Evidence of these deaths had been excluded from trial.

-7- Jorge. According to the district court, the government had not

brought forth sufficient evidence that Fernández-Jorge -- who,

unlike his codefendants, did not live in Humacao -- knew or should

have known that he was in a school zone. The court sentenced each

of the remaining Defendants to 60 months' imprisonment for Count

Three. It also sentenced both Mendoza-Ortega and Otero-Márquez

to an additional 120 months' imprisonment for Count One, to be

served consecutively with their sentences for Count Three.

Now, the government appeals Fernández-Jorge's acquittal

and the Defendant-Appellants appeal their convictions, challenging

both the sufficiency of the evidence and the district court's jury

instructions. We first consider whether sufficient evidence

supported all of the Defendants' convictions on Count Three, and

the convictions of Mendoza-Ortega and Otero-Márquez on Count One.

We then address whether the district court correctly instructed

the jury on aiding and abetting liability.

II. The motions for acquittal

We review a district court's ruling on a Rule 29 motion

de novo, viewing the evidence in the light most favorable to the

jury's guilty verdict. United States v. Santos-Soto, 799 F.3d 49,

56-57 (1st Cir. 2015). The "verdict must stand unless the evidence

is so scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

-8- beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597

F.3d 32, 39 (1st Cir. 2010) (emphasis in original).

Because Counts One and Three charged the Defendants in

the principal and aiding and abetting forms, we also find it useful

to review the essentials of aiding and abetting liability.

18 U.S.C. § 2 provides that anyone who aids or abets a crime

against the United States "is punishable as a principal."4 One

"is liable under § 2 for aiding and abetting a crime if (and only

if) he (1) takes an affirmative act in furtherance of that offense,

(2) with the intent of facilitating the offense's commission."

United States v. Encarnación-Ruiz, 787 F.3d 581, 587 (1st Cir.

2015) (quoting Rosemond v. United States, 134 S. Ct. 1240, 1245

(2014)). To be guilty of aiding and abetting a crime, a defendant

need not have actually assisted the principal in committing each

element of the crime. Id. But, the defendant does need to have

"intend[ed] to facilitate 'the specific and entire crime

charged.'" Id. (quoting Rosemond, 134 S. Ct. at 1248). As a

4 The overwhelmingly preferred nomenclature for this form of criminal liability -- which the indictment also used -- is the conjunctive "aiding and abetting." Yet, 18 U.S.C. § 2 applies to anyone who "aids, abets, counsels, commands, induces or procures [the underlying offense's] commission." Id. (emphasis added). This distinction seems to lack significance, though, as it is difficult to imagine a case in which a defendant has "aided" the commission of an offense without also having "abetted" it, or vice versa.

-9- result, the defendant must have had "advance knowledge" of the

crime he or she facilitated to be guilty of aiding and abetting

it. Id. at 588 (quoting Rosemond, 134 S. Ct. at 1249); see also

United States v. Ford, 821 F.3d 63, 69 (1st Cir. 2016). Finally,

"[p]roving beyond a reasonable doubt that a specific person is the

principal is not an element of the crime of aiding and abetting."

United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).

A. The Defendant-Appellants' motions for acquittal on Count Three

In attacking the district court's denial of their Rule

29 motions as to the possession of a firearm in a school zone

count, the Defendant-Appellants advance three categories of

arguments. First, all of the Defendant-Appellants argue that the

government did not introduce sufficient evidence that they

possessed the firearms recovered from the tunnel. Second, De la

Cruz-Vázquez and Otero-Díaz assert that the government failed to

sufficiently establish that they were, in fact, within a school

zone. Finally, Pérez-Torres, De la Cruz-Vázquez, Mendoza-Ortega,

and Otero-Díaz argue that sufficient evidence did not support the

conclusion that they knew or should have known that they were in

a school zone.

1. Possession of firearms

We begin by considering whether any rational fact-finder

could have concluded beyond a reasonable doubt that the Defendant-

-10- Appellants possessed firearms or aided and abetted each other in

doing so with advance knowledge of this element.5 See Rosemond,

134 S. Ct. at 1249; Rodríguez-Vélez, 597 at 39.

"'Knowing possession of a firearm' may be proven through

either actual or constructive possession." United States v.

Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014). Proving

constructive possession, in turn, requires proving that the

defendant had "the power and intention of exercising dominion and

control over the firearm." Id. (citing United States v. DeCologero,

530 F.3d 36, 67 (1st Cir. 2008)). Constructive possession may be

joint. DeCologero, 530 F.3d at 67. Additionally, it is possible

to prove constructive possession by relying entirely upon

circumstantial evidence. Guzmán-Montañez, 756 at 8 (citing United

States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)). However,

"mere presence with or proximity to weapons or association with

another who possesses a weapon" is insufficient to

circumstantially establish constructive possession. United States

v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009). Rather, it

is necessary to show "some action, some word, or some conduct that

5 None of the Defendant-Appellants have challenged the district court's holding that, for Rule 29 purposes, the government succeeded in establishing that the firearms in question had traveled through interstate commerce, an element of Counts One and Three. See 18 U.S.C. § 922(g), (q)(2)(A).

-11- links the individual to the contraband and indicates that he had

some stake in it, some power over it." United States v. McLean,

409 F.3d 492, 501 (1st Cir. 2005) (quoting In re Sealed Case, 105

F.3d 1460, 1463 (D.C. Cir. 1997)). For example, valid

circumstantial evidence of constructive possession includes

evidence of an individual's "control over the area where the

contraband is found." Id.

Though no witnesses testified to having seen any of the

Defendant-Appellants possessing a weapon, the government contends

that it introduced ample circumstantial evidence of possession.

We now review that evidence.

First, Officer Ángel Fontánez testified that he was on

motorcycle patrol near Jardines de Oriente on the morning of

February 16, 2012, when he heard the sound of gunfire emanating

from the housing project. Fontánez took cover behind the

supporting column of a nearby bridge, and once the gunfire

subsided, he approached Jardines de Oriente on his motorcycle.

Though some buildings partially obstructed his view, he saw seven

or eight individuals -- several of them wearing dark clothing --

running towards a fence at the back of Jardines de Oriente. He

said that he then observed three or four people scale that fence

and head toward the entrance of a tunnel located on the other side.

-12- Fontánez hurried to the tunnel's entrance, where several other

officers had also gathered.

Fontánez then testified that, while positioned outside

the entrance, he heard voices and the sound of gunfire from within

the tunnel. According to Fontánez, two people then emerged from

a manhole atop the tunnel and attempted to flee. When those two

did not heed Fontánez's order to freeze, he fired a warning shot.

In response, one of the two individuals retreated back down the

manhole, while the other dove into some nearby bushes. The bushes,

however, provided ineffective cover, and officers arrested this

individual (later identified as De la Cruz-Vázquez) -- whom

Fontánez described as wearing a black jacket and gloves -- and

discovered a magazine containing around 30 bullets in his pocket.

Officer Víctor Cruz-Sánchez corroborated Officer Fontánez's

testimony about arresting De la Cruz-Vázquez and finding

ammunition on him after he surfaced from the manhole.6

Agent José López-Ortiz testified that he was on patrol

when he received a radio call about the events transpiring at

Jardines de Oriente. He approached the housing project in his

6 Cruz-Sánchez himself did not testify during the second trial. Rather, the district judge's two law clerks read Cruz-Sánchez's testimony from the first trial into the record. One clerk played the part of Cruz-Sánchez, and the other the various attorneys who questioned him during that proceeding.

-13- vehicle and waited underneath the same bridge as Fontánez, along

with other officers, until the sound of gunfire coming from

Jardines de Oriente relented. López-Ortiz testified that, as he

and Fontánez approached Jardines de Oriente together, he saw three

people dressed in black jump over a fence and into a ditch on the

other side. From there, López-Ortiz explained, those individuals

ran into a tunnel, at which point he lost sight of them.

The jury also heard testimony from Puerto Rico Police

Agent Abdel Morales-De León, another of the officers who responded

to the shootout at Jardines de Oriente. He too testified about

hearing male voices and gunfire from within the tunnel as he

approached its entrance alongside other officers. Six shirtless

males then emerged from the tunnel and were promptly detained.7

Morales-De León recovered a .233-caliber bullet -- which he

described as appearing recently discharged -- from the ground where

7 We note that the record is not entirely clear as to whether De la Cruz-Vázquez and his companion attempted to escape from the manhole before or after the remaining six Defendants were arrested after emerging from the tunnel's entrance. This is largely because no one officer testified about both events. The parties and the district court, however, all seem to have treated the "manhole escape" as having occurred first. Particularly because nobody has made arguments concerning the possibility that anyone remained in the tunnel after the seven Defendants were detained, we do not see any reason to depart from this assumption. Additionally, insofar as this sequence of events is more favorable to the jury's verdict, the standard for reviewing Rule 29 motions would also require us to construe the facts in this manner.

-14- these individuals were arrested. He then entered the tunnel with

a group of officers, using a small flashlight to light their way.

Morales-De León explained that their search of the tunnel turned

up seven firearms, a fanny pack containing several loaded

magazines, and various articles of dark clothing. He added that

the officers noticed fresh mud prints on the steps leading up to

a manhole connecting the tunnel to the surface, and that the

manhole cover had been removed.

Officer Daniel Rosas-Rivera also provided an account of

his role in responding to the shootout and subsequent events. He

described hearing gunfire from within the tunnel as he approached

it alongside other officers. He then told the jury that he

observed six shirtless men emerge from the tunnel with their hands

up, exclaiming "don't shoot us." Rosas-Rivera was also among the

officers who entered the tunnel with a flashlight immediately after

the Defendants' arrest. He testified that their sweep of the

tunnel revealed that it was possible to exit the tunnel via a

manhole, and that they found that manhole open, its cover having

been moved aside. Rosas-Rivera also explained that the officers'

search of the tunnel yielded a bullet, loaded firearms, and

magazines.

Gualberto Rivas-Delgado testified about the

investigation of the tunnel that he undertook as a member of the

-15- Puerto Rico Police's Technical Services Division. He arrived on-

scene at around 4:00 p.m. on the day of the shootout, after Rosas-

Rivera and Morales-De León had completed the initial sweep of the

tunnel about which they testified. Rivas-Delgado found more

ammunition inside of the tunnel -- some of it submerged in puddles,

and some sealed in a plastic bag -- as well as additional articles

of clothing, most of them dark in color.

Finally, the jury heard testimony from Edward

Pérez-Benítez, a firearms examiner and tool marks expert from

Puerto Rico's Institute of Forensic Sciences. He explained that

he had examined the weapons recovered from the tunnel and bullets

recovered from the site of the shootout at Jardines de Oriente.

His investigation led him to conclude that four of the guns found

in the tunnel had been used in the shootout.

In synthesis, the jury heard the following: (1) a

shooting had occurred in the Jardines de Oriente on the morning of

February 16, 2012; (2) seven or eight individuals in dark clothing

were seen fleeing the scene of the shooting; (3) officers saw three

or four of these men enter a tunnel; (4) De la Cruz-Vázquez was

arrested, shirtless, after trying to escape from a manhole atop

the tunnel, and was found to be carrying a loaded magazine; (5)

officers standing at the entrance to the tunnel heard weapons

discharge inside the tunnel; (6) the remaining six Defendants then

-16- emerged, shirtless, from the tunnel and were arrested; (7) officers

recovered seven firearms, ammunition, and various articles of dark

clothing from within the tunnel; and (8) a ballistics expert linked

four of those firearms to the shootout at Jardines de Oriente.

All of this is sufficient evidence for a rational fact-

finder to conclude that at least one of the Defendant-Appellants

possessed a firearm, while the remainder aided and abetted him.

See Campa, 679 F.2d at 1013 (identity of principal not an element

of aiding and abetting). And that is sufficient to sustain the

Defendant-Appellants' Count Three convictions. The first component

of this conclusion, that at least one of the seven Defendants

possessed a firearm, is particularly unavoidable given that four

of the weapons found in the tunnel had been fired during the

shootout. Further, keeping in mind that advance knowledge of each

element of the underlying offense is an element of aiding and

abetting, see Rosemond, 134 S. Ct. at 1249, we agree with the

government that the evidence here does tend to suggest that the

Defendant-Appellants had advance knowledge of, and participated in

some form in, the shootout. Thus, we think that the evidence

would allow a rational fact-finder to conclude that any Defendant-

Appellants who were not principals (because they did not possess

firearms) nonetheless facilitated the principal or principals'

-17- possession, with advance knowledge of this element. We now turn

to the remaining elements of Count Three.

2. Actual presence in a school zone

We now take up the assertion of De La Cruz-Vázquez and

Otero-Díaz that the government failed to establish that they were,

in fact, in a school zone when they allegedly possessed a firearm.

A "school zone" is the area within 1,000 feet from the grounds of

any school. United States v. Nieves-Castaño, 480 F.3d 597, 603

(1st Cir. 2007) (quoting 18 U.S.C. § 921(a)(25)). We note that

the proper inquiry here -- given the possibility for aiding and

abetting liability -- is whether any of the Defendants found

himself in a school zone while possessing a firearm.

At trial, government witness and Puerto Rico Police

Officer José Hiraldo-Benítez explained his conclusion, which he

reached by employing distance-measuring laser equipment, that 710

feet separated the School's perimeter fence and the point in the

tunnel where the weapons were found. He likewise explained that

804 and 837 feet separated the School's fence from two points where

spent shell casings from the shootout had been found.8 Finally,

according to Hiraldo-Benítez, the margin of error for these

measurements was less than one inch.

8 Hiraldo-Benítez's measurements relied on other officers' representations of where the weapons in the tunnel.

-18- We find this to be sufficient evidence to support the

conclusion that one or more of the Defendants possessed firearms

within a school zone. De La Cruz-Vázquez stresses that Hiraldo-

Benítez may have arrived at his figure of 710 feet by measuring

from a point atop the tunnel that did not necessarily lay precisely

over the point in the tunnel where the weapons were found. This

theoretical possibility does not, however, mean that no reasonable

fact-finder could have concluded that any of the Defendant-

Appellants possessed firearms anywhere within 1,000 feet of the

School.

First, a reasonable fact-finder could well have

concluded that Hiraldo-Benítez did measure from the correct point

atop the tunnel. This is particularly so given the paucity of

reasons that De la Cruz-Vázquez offers to believe that Hiraldo-

Benítez measured from an incorrect point. Second, even if

Hiraldo-Benítez did measure from the wrong point, that still would

not foreclose the reasonable conclusion that the Defendant-

Appellants possessed firearms in a school zone. Given that at

least four of the guns traveled from the site of the shootout to

the tunnel, the precise location in the tunnel where they were

found is of lesser importance. We further note that De la Cruz-

Vázquez does not dispute that shell casings were found within the

school zone. And this strongly suggests that the shootout involved

-19- guns being fired, and therefore possessed, within a school zone.

De la Cruz-Vázquez and Otero-Díaz, therefore, come up quite short

in attempting to convince us that no reasonable factfinder could

have concluded that any of the Defendants possessed a firearm

within 1,000 feet of the School. Having resolved that point, we

now take up the final disputed element of Count Three.

3. Knowing presence in a school zone

We next consider whether each of the Defendant-

Appellants knew or should have known that they were in a school

zone while they were possessing a firearm or, alternatively, that

each of them was aiding and abetting such possession of a firearm

in a school zone with the requisite advance knowledge. See

18 U.S.C. §§ 2, 922(q)(2)(A). Circumstantial evidence may serve

as the solitary proof of one's culpable knowledge. United States

v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). However, in

Guzmán-Montañez, we overturned the defendant's conviction under

§ 922(q)(2)(A) when the government, in attempting to establish the

defendant's knowledge that he was in a school zone, relied solely

upon the school's proximity to the location where the defendant

was found armed. 756 F.3d at 11-12. In concluding that a rational

factfinder could not have made this "giant leap of faith," we

stressed in particular that the defendant was not a resident of

that area. Id. at 12. This contrasts with our holding in Nieves-

-20- Castaño. There, in reaching the opposite conclusion about the

defendant's knowledge, we emphasized that "three minor children

lived with the defendant, and it would be easy for a jury to

conclude that she knew there were two schools nearby, within or

just outside her housing project and less than 1000 feet away, and

that she regularly passed by those schools." 480 F.3d at 604.

Here, the evidence of the Defendant-Appellants' knowledge of the

school zone seems to fall between these two poles.

The government makes a number of arguments in support of

the district court's determination that sufficient evidence

established that the Defendant-Appellants either knew or should

have known that they were in a school zone. First -- pointing

largely to the same evidence we considered in addressing their

actual presence in a school zone -- the government stresses that

the Defendant-Appellants found themselves in close proximity to

the School at the relevant times. Specifically, the government

highlights that the School's basketball court was approximately 50

feet from the fence that the Defendant-Appellants scaled en route

to the tunnel. The government adds that the basketball court's

roof was also visible from Jardines de Oriente. But, on its own

-- especially given that nothing about the roof of this basketball

court suggested that it was part of a school -- this evidence would

not suffice. See Guzmán-Montañez, 756 F.3d at 11-12. However,

-21- this is not the extent of the evidence that the government

introduced.

The government also avers that it would be reasonable

for the jury to have inferred that the Defendant-Appellants put

some amount of forethought into the shootout and their subsequent

escape. The swiftness of the Defendant-Appellants' flight from

Jardines de Oriente and into the tunnel, the government says,

suggests they had planned out this endeavor beforehand. And as a

result, the government tells us, a rational fact-finder could

certainly infer that, in undertaking all of this planning, the

Defendants would have realized that there was a school nearby.

Furthermore, the government reminds us that all of the

Defendant-Appellants were residents of Humacao, and that all of

them except for Mendoza-Ortega lived at Dr. Palou, 9 and that

9 We pause to address what appears to be a mistake in the district court's order on the Defendants' Rule 29 motions. In that order, the district court first stated that Otero-Márquez lived in the Dr. Palou housing project, while Mendoza-Ortega did not, though he did live elsewhere in Humacao. But in the next paragraph, after considering the arguments of the residents of the Dr. Palou projects, the district court remarked that "Edwin Otero-Márquez was a resident of Humacao and had been spotted with several co- defendants at the Dr. Palou housing project on another occasion. Hence, one can reasonabl[y] conclude that [he] knew the area well and was aware that the [School] was located on the same street as Dr. Palou . . . ." Thus, in this paragraph, the court appears to have confused Otero-Márquez, who was a resident of the Dr. Palou project, with Mendoza-Ortega, who was not. Ultimately though, this error is harmless, because we, like the district court, conclude that sufficient evidence established that Mendoza-Ortega

-22- Government witness Officer Lebrón-Delgado testified that he had

seen Mendoza-Ortega at Dr. Palou before the date of the shootout.

And this is all particularly important because the School, a two-

story building, is located on the same street as Dr. Palou.

Additionally, the front of the School features signage identifying

it as an elementary school.

We think that all of this would allow a reasonable fact-

finder to conclude that all of the Defendant-Appellants either

knew or should have known that they were in a school zone. It is

difficult to imagine that the four Defendant-Appellants who lived

at Dr. Palou were unaware of the existence of a school on the same

street. Though Mendoza-Ortega did not live at Dr. Palou, we

nonetheless find it reasonable to conclude that -- as a resident

of Humacao who had visited Dr. Palou before -- he at least should

have known that he was in a school zone. And for these same

reasons, we also find it reasonable to conclude for Rule 29

purposes that the Defendant-Appellants all had "advance knowledge"

of the School's location for purposes of aiding and abetting

liability.

In summary, given the evidence at trial, a rational fact-

finder could conclude the following: (1) at least one of the

and Otero-Márquez should have known they were in a school zone.

-23- Defendant-Appellants possessed a firearm, while the others aided

and abetted him with advance knowledge; (2) the Defendant-

Appellant(s) who possessed a firearm did so while in a school zone;

and (3) all of the Defendant-Appellants had advance knowledge of

the School's location. Thus, we hold that the government did

introduce sufficient evidence of the Defendant-Appellants'

culpability on Count Three, and that the district court did not

err in denying their Rule 29 motions as to that Count.

B. Fernández-Jorge's motion for acquittal on Count Three

We now take up the government's challenge to the district

court's grant of Fernández-Jorge's motion for acquittal. The

thrust of the government's challenge is that, while not a resident

of Humacao like the Defendant-Appellants, Fernández-Jorge

nonetheless had ample reason to know he was in a school zone. In

so arguing, the government leans on evidence that the School

(though not any signage identifying it as such) was visible from

the entrance to Jardines de Oriente and nearby roads, and on the

ostensibly planned nature of the shootout and the Defendants'

flight from it -- which, according to the government, suggests a

certain level of familiarity with the area.10

10 The government also maintained in its brief that the evidence of Fernández-Jorge's knowledge of the school zone was particularly strong "given the district court's observation that . . . 'the route passing in front of the school is a principal way to arrive at Dr. Palou.'" But the district court order does not indicate

-24- But a number of considerations cut in the opposite

direction. For one, as Fernández-Jorge stresses, none of the

police officers who testified at trial had ever seen him in Humacao

before the shootout. In fact, the government did not introduce

any evidence that Fernández-Jorge had ever visited Humacao before

the morning of the shootout. And we recall that the only part of

the School actually visible from Jardines de Oriente is the roof

of its basketball court, which, again, provides no indication that

it is part of a school. Additionally, while it is possible that

Fernández-Jorge, who lived in San Juan, may have passed the

School's front entrance and seen the signs identifying it as a

school on his way to Humacao, this is not necessarily so. For,

Fernández-Jorge posits that in traveling to Jardines de Oriente

from San Juan, one "would ordinarily take the more direct route,"

which does not involve driving past the School's front entrance.

Setting aside the question of whether this route is in fact the

when at trial this was established, and the government has declined to provide a citation that would illuminate us on that score. We also observe that the government similarly cited only the district court order -- which, again, does not contain citations to the record -- for the proposition that the "front of the school contains the school's name and clearly identifies [it] as being an elementary school." We feel compelled to emphasize that -- particularly in the context of arguments concerning the sufficiency of the evidence -- neglecting to provide citations to the record in support of factual assertions is a poor strategic choice.

-25- most intuitive or direct, we do take note of the existence of an

alternative route -- a point the government concedes -- that would

not have taken Fernández-Jorge past the front of the School.

In sum, the government's arguments do not differ

significantly from those that we rejected in Guzmán-Montáñez. See

756 F.3d at 11-12. The government's only arguments that are not

a variation of imputing knowledge of a school zone though mere

physical proximity to a school involve the shootout's apparent

premeditation and coordination, and the possibility that

Fernández-Jorge drove past the front of the School on his way to

Jardines de Oriente.11

But, even assuming that the Defendants did plan the

shootout together, this would not have required them to have all

visited Jardines de Oriente and its surrounding area with

Fernández-Jorge in tow. Additionally, the School's seeming

irrelevance to both the apparent objective of the Defendants' plan

(to go to Jardines de Oriente and shoot firearms), and their

11 In its brief, the government also tells us that the word "school" appears nearly 450 times in the trial transcript, and that while "some fraction of those mentions were at sidebar or otherwise outside the jury's hearing, the overall number is nonetheless indicative of the thoroughness with which the location of the school, its position relative to events, and its visibility were presented to the jury." Out of fear of inadvertently dignifying this argument with a longer discussion of it, we simply say here that we do not find it persuasive.

-26- attempted escape through the tunnel, also weakens the suggestion

that their advance planning would imply Fernández-Jorge's

knowledge of the school zone. And we also find the less-than-

certain possibility that Fernández-Jorge would have driven past

the School en route to Jardines de Oriente insufficient to tip the

scales towards the reasonable conclusion that he knew or should

have known of its location. This inferential "leap," see id. at

12 -- particularly in the absence of any evidence that Fernández-

Jorge had previously been to Humacao, or about how and from where

he arrived at Jardines de Oriente on the day of the shootout -- is

too large for a rational fact-finder to have made. Therefore,

because the government fails to convince us that sufficient

evidence supported the conclusion, beyond a reasonable doubt, that

Fernández-Jorge knew or should have known of the School's location,

we affirm the district court's grant of his motion for acquittal.

C. Mendoza-Ortega and Otero-Márquez's motions for acquittal on Count One

Turning now to Count One -- which charged Mendoza-Ortega

and Otero-Márquez with possessing firearms as felons in the

principal and aiding and abetting forms -- we begin by highlighting

that Mendoza-Ortega and Otero-Márquez, and nobody else, stipulated

that they had been previously convicted of crimes potentially

punishable with over one year of imprisonment, a necessary element

of that offense. See 18 U.S.C. § 922(g). Now, in reviewing the

-27- district court's denial of their motions for acquittal as to that

count, we ask if a rational fact-finder could have reached either

of the following conclusions: (1) that Otero-Márquez and Mendoza-

Ortega both possessed firearms; or (2) that one of these

individuals possessed a firearm while the other aided and abetted

him. This is so because these two are the only previously convicted

felons among the Defendant-Appellants. And this is a crucial

point. For, while Count Three required only that someone have

possessed a firearm and that the rest of the Defendants have aided

and abetted that person, Count One requires that at least one of

two specific individuals -- that is, those with prior felony

convictions -- possessed a firearm.

Harkening back to our earlier discussion of the

government witnesses' trial testimony, see supra § II.A.1, while

it is plain that at least one of the Defendants possessed firearms,

there is scant evidence providing insight into who among the

Defendants that may have been. Perhaps recognizing that it would

face an uphill battle in attempting to show that any particular

Defendant possessed a firearm, the government maintains that the

evidence "permits the inference" that each of the seven Defendants

possessed one of the seven firearms that police later found in the

tunnel. And because the evidence that any one Defendant in

particular possessed a firearm would be equally applicable to the

-28- remaining Defendants,12 it seems that the only possible conclusions

to draw, for Rule 29 purposes, are that: (1) all seven Defendants

possessed their own firearm; or (2) it is impossible to know which

of the Defendants possessed firearms. As a result of all of this,

our inquiry becomes this: Could a rational fact-finder have

concluded beyond a reasonable doubt that each of the seven

Defendants possessed exactly one firearm? Or, alternatively, we

can frame the question as whether the government introduced

sufficient evidence that none of the Defendants were unarmed.

In assessing whether the jury could permissibly conclude

that, because the number of Defendants corresponds to the number

of guns, each Defendant had one gun, we find it significant that

only four of the guns were linked to the shootout. In theory, one

of the strongest arguments against the notion that one or more of

the Defendants was unarmed is essentially "who in the world would

participate in a planned shootout unarmed?" But, while convincing

in theory, this argument loses much of its persuasiveness here,

when applied to the facts established at trial.

We are confident in our conclusion, as discussed with

respect to Count Three, that a rational fact-finder could have

12 True, De la Cruz-Vázquez had ammunition on his person when he was arrested, but because he had not been previously convicted of a felony, this does not impact our analysis here.

-29- concluded on the basis of the evidence at trial that the Defendant-

Appellants had advance knowledge that one of their number possessed

a firearm during the shootout in which they participated in some

form. But, it does not follow that the evidence that all seven

Defendants were involved in the shootout -- in some form -- was

strong enough to serve as the basis for the further inferential

leaps that are still necessary to land at the conclusion that all

seven Defendants possessed a firearm. This is particularly so in

light of our reluctance to "stack inference upon inference in order

to uphold the jury's verdict." United States v. Burgos, 703 F.3d

1, 10 (1st Cir. 2012) (quoting United States v. Valerio, 48 F.3d

58, 64 (1st Cir. 1995)); see also United States v. Ruiz, 105 F.3d

1492, 1500 (while circumstantial evidence alone may provide

sufficient evidence to uphold a verdict, we disfavor stacking

inferences to uphold a conviction on the basis of purely

circumstantial evidence).

Keeping in mind, once more, that only four of the seven

guns were linked to the shootout, we are left with competing

explanations as to why. It could be because three of the

Defendants, while armed, simply elected not to shoot during the

shootout. Or, it could also be that the Defendants who fired the

guns that were linked to the shootout also possessed additional

firearms that they did not use during the shootout. Or a

-30- combination of these two things is also possible (e.g., two

Defendants were unarmed, and two Defendants each possessed two

guns, but only fired one).13 We thus conclude that there was not

sufficient evidence for a rational jury to have concluded, beyond

a reasonable doubt, that any of these scenarios was actually the

case here. See United States v. Flores-Rivera, 56 F.3d 319, 323

(1st Cir. 1995) (reversal is required when "an equal or nearly

equal theory of guilt and a theory of innocence is supported by

the evidence viewed in the light most favorable to the prosecution,

[because in such a case] a reasonable jury must necessarily

entertain a reasonable doubt") (alteration in original).

In summary, as the only Defendants previously convicted

of felonies, to convict Otero-Márquez and Mendoza-Ortega on Count

One, the government needed to show that at least one of those two

possessed a firearm. And, in the absence of any evidence that

either was more likely than the remaining Defendants to have

possessed firearms, to show that either of those two individuals

possessed a firearm, the government needed to put on sufficient

evidence that all seven Defendants did so. To arrive at that

conclusion, the jury would have had to first infer from

13 It is also theoretically possible that the Defendants were not responsible for bringing the three unfired guns into the tunnel, and that those guns were already there when they reached the tunnel. We find this less probable, though.

-31- circumstantial evidence that all seven Defendants were involved in

the shootout in some capacity, and then reject the possibility

that any of the Defendants possessed more than one firearm. Thus,

upholding the jury's verdict would require us to sanction both

stacking inferences and choosing between two "equal or nearly

equal" theories. Flores-Rivera, 56 F.3d at 323; see Burgos, 703

F.3d at 10. We decline to do so here, and hold that a rational

fact-finder could not have found beyond a reasonable doubt that

Otero-Márquez or Mendoza-Ortega possessed a firearm. We therefore

hold that the district court erred in denying those two

individuals' motions for acquittal on Count One.

III. The Jury Instructions for Count Three

Having concluded that sufficient evidence supported the

Defendant-Appellants' Count Three convictions, we now take up the

question of whether the district court's jury instructions for

that Count were erroneous.14 At the end of the trial, Mendoza-

Ortega filed a motion requesting that the district court's

forthcoming jury instructions reflect Rosemond's "advance

knowledge" requirement, see 134 S. Ct. at 1249. Otero-Márquez

joined that request at the charge conference. On appeal, Mendoza-

14 Because we conclude that insufficient evidence supported the Count One convictions, we need not reach the question of whether the district court's aiding and abetting instructions for Count One were erroneous.

-32- Ortega and Pérez-Torres both assert that, because they failed to

take Rosemond into account, the district court's aiding and

abetting instructions for Count Three were erroneous.

This argument having been duly preserved, we must now

determine de novo whether the requested instruction was

"substantially covered by" the instruction that the district court

actually gave. United States v. Baird, 712 F.3d 623, 628 (1st

Cir. 2013); see also United States v. Godin, 534 F.3d 51, 56 (1st

Cir. 2008) (our review of whether a trial court's jury instructions

captured the elements of the relevant offense is de novo).

Moreover, it is of no import that the jury returned a general

verdict here that did not distinguish between the principal and

aiding and abetting forms of the offense. A general guilty verdict

cannot stand when it may have rested on constitutionally invalid

grounds. See Griffin v. United States, 502 U.S. 46, 53 (1991)

("[W]here a provision of the Constitution forbids conviction on a

particular ground, the constitutional guarantee is violated by a

general verdict that may have rested on that ground.") (citing

Stromberg v. California, 283 U.S. 359, 568 (1931)).

In light of the request made below, we must determine

whether the district court's instructions adequately captured and

impressed upon the jury Rosemond's requirement that to be guilty

of aiding and abetting an offense, a defendant must have had

-33- advance knowledge of each element of the offense. As Rosemond

clarifies, "advance knowledge" is "knowledge that enables [a

defendant] to make the relevant legal (and indeed, moral) choice."

134 S. Ct. at 1249. That is, the would-be accomplice must know

of the principal's plan to commit the underlying offense with

sufficient anticipation to be able to "attempt to alter that plan

or, if unsuccessful, withdraw from the enterprise." Id. Only

then may aiding and abetting liability attach.

Here, the district court instructed the jury that, to

find the Defendants guilty of Count Three in the aiding and

abetting modality, it needed to find, beyond a reasonable doubt,

first that a principal committed the crimes charged, and "[s]econd,

that the charged defendants consciously shared the other person's

knowledge of the crimes charged in the indictment, intended to

help each other, and took part in the endeavor, seeking to make it

succeed."

Whether this formulation runs afoul of Rosemond depends

on whether "seeking to make it succeed" applies to all of the

clauses that precede it, or only to its immediate predecessor:

"took part in the endeavor." If it applies to all of the preceding

clauses, then we have no Rosemond problem because the instructions

would require the jury to find that an alleged aider and abettor

knew that the principal was to commit the crime of possessing a

-34- gun in a school zone when he leant his assistance with the intent

to make the criminal endeavor succeed. That would be consistent

with Rosemond's advance knowledge requirement. But if the pronoun

"it" in "seeking to make it succeed" refers only to "the endeavor,"

then we do have a Rosemond problem. In that case, the instructions

would allow the jury to find a defendant guilty of aiding and

abetting when the defendant (1) "took part in the endeavor, seeking

to make it succeed" by (2) assisting the principal in bringing a

gun to a particular location, and only then, upon realizing that

this location was in a school zone, (3) "consciously shared" the

principal's knowledge of the crime. That is, this interpretation

of the instruction does not require the government to have proven

that the aider and abettor shared the defendant's knowledge of the

crime before or even at the moment when he chose to lend his

assistance.15 And that would conflict with Rosemond.

15It may be helpful to visualize these alternative interpretations in this manner. The instructions comported with Rosemond if this is their proper interpretation: "that the charged defendants [(consciously shared the other person's knowledge of the crimes charged in the indictment, intended to help each other, and took part in the endeavor), seeking to make it succeed]."

The instructions did not comport with Rosemond, though, if we interpret them this way: "that the charged defendants [(consciously shared the other person's knowledge of the crimes charged in the indictment), (intended to help each other), and (took part in the endeavor, seeking to make it succeed)]."

-35- This second possible interpretation seems the more

likely of the two because the instruction uses the singular

"seeking to make it succeed," making it unlikely that this clause

was meant to apply to the entire list of things preceding it, which

includes the plural "crimes charged in the indictment." At a

minimum, it is distinctly possible that the jury interpreted the

instructions this way. As the Supreme Court has explained, when

faced with ambiguous jury instructions, the proper inquiry is

"'whether there is a reasonable likelihood that the jury has

applied the challenged instruction in a way' that violates the

Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991)

(quoting Boyde v. California, 494 U.S. 370, 380 (1990)). And it

would indeed violate the Constitution if the jury convicted the

Defendants on Count Three without the government having proven all

of the offense's elements -- including "advance knowledge" --

beyond a reasonable doubt. See Patterson v. New York, 432 U.S.

197, 210 (1977) ("[T]he Due Process Clause requires the prosecution

to prove beyond a reasonable doubt all of the elements included in

the definition of the offense of which the defendant is charged.").

Finally, before vacating convictions as the result of

instructional error, we must assess whether that error was

harmless. See Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir. 1996);

accord Hedgpeth v. Pulido, 555 U.S. 58, 61 (2008). When jury

-36- instructions fail to account for an element of the crime charged,

that error is harmless only if we can conclude "beyond a reasonable

doubt that the omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have been

the same absent the error." United States v. Pizarro, 772 F.3d

284, 297-98 (1st Cir. 2014) (quoting Neder v. United States, 527

U.S. 1, 17 (1999)). Here, this does not allow us to conclude that

the district court's instructional error was harmless.

First, given the centrality at trial of the question of

whether the Defendants knew of the School's location, we cannot

describe the element of "advance knowledge" as uncontested.

Moreover while we have concluded that, for Rule 29 purposes, a

rational fact-finder could have found that the Defendants knew or

should have known they were in a school zone, that requires far

less than "overwhelming" evidence. In the end, we cannot say that

overwhelming evidence established that the Defendant-Appellants

had advance knowledge that the principal was to possess a firearm

within 1,000 feet of a school. And so the error that infected the

district court's aiding and abetting instructions was not

harmless.

To conclude, there is a "reasonable likelihood" that the

jury interpreted the district court's aiding and abetting

instructions in a way that violates Rosemond. See Estelle, 502

-37- U.S. at 72. That error was not harmless. See Pizarro, 772 at

297-98. Therefore, because the jury's general verdict could have

rested on a constitutionally impermissible ground, see Griffin,

502 U.S. at 53, we must vacate the district court's judgments of

guilty as to Count Three for all of the Defendant-Appellants.16

16 We have one last loose end to tie up. Not all of the Defendant- Appellants requested a Rosemond instruction below, and not all of them claim on appeal that the district court's aiding and abetting instructions were erroneous. But we do not think that this means that only those Defendant-Appellants who have raised this issue should have their convictions vacated. First, the government has not taken this position. See United States v. Burhoe, 871 F.3d 1, 28 n.33 (1st Cir. 2017) (finding that the government had forfeited any argument that the defendants had waived a particular issue). The purpose behind our "waiver" doctrines also supports this conclusion. Appellate courts are typically loath to consider forfeited arguments for two reasons. The first concerns our institutional role as a court of review: we review the decisions that a lower court (or agency) has actually made. See Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2004) ("We have frequently said that we are a court of errors, and that a district court cannot have erred as to arguments not presented to it."); see also HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270, 1281-82 (Fed. Cir. 2012) (emphasizing finality and judicial economy). The second justification stems from the idea that it is unfair to allow parties to surprise one another with new arguments that they did not make at the appropriate procedural juncture. See Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir. 2010) (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941)).

But here, vacating the convictions of only those Defendant- Appellants who have raised the Rosemond issue would vindicate neither of those interests. The district court considered this issue and issued a ruling on it. And the government -- both because this issue arose below and because some of the Defendant- Appellants took it up in their opening briefs -- certainly had sufficient notice of this issue at the appellate stage. We therefore think that the district court's instructional error requires vacating all of the Defendant-Appellants' convictions on

-38- IV. Conclusion

While the Defendant-Appellants have raised additional

claims of evidentiary error and challenges to their sentences, we

need not reach them. See United States v. Sasso, 695 F.3d 25, 31

& n.1 (1st Cir. 2012) (vacating because of instructional error and

then declining "to rule gratuitously upon the defendant's

remaining assignments of trial and sentencing error" because "[i]t

is unlikely that any of these claims will arise in the same posture

if the case is retried"). With regard to Fernández-Jorge, the

district court's judgment is affirmed. With regard to the

Defendant-Appellants, the district court's judgment is reversed as

to Count One and vacated as to Count Three.

Affirmed, Reversed, and Vacated.

Count Three. See United States v. Cardales-Luna, 632 F.3d 731, 736 (1st Cir. 2011) (explaining it is in the interests of justice to treat "materially identical cases alike"); cf. Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995) (appellate courts may exercise their discretion to forgive waiver when "the equities heavily preponderate in favor of such a step"). Lastly, we note that other courts faced with similar situations have invoked Fed. R. App. P. 2 -- which authorizes courts to suspend other rules sua sponte -- to forgive a defendant's failure to incorporate by reference arguments advanced in a co-defendant's brief pursuant to Rule 28(i). See United States v. Olano, 394 F.2d 1425, 1439 (9th Cir. 1991), rev'd on other grounds, 507 U.S. 725 (1993); United States v. Rivera-Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir. 1988) (invoking Fed. R. App. P. 2's authorization "to relieve litigants of the consequences of default where manifest injustice would result"); United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980); United States v. Anderson, 584 F.2d 849, 853 (6th Cir. 1978).

-39-