United States v. Hernandez-Roman

981 F.3d 138

Opinion

United States Court of Appeals For the First Circuit

No. 18-2133

UNITED STATES OF AMERICA,

Appellee,

v.

JOMAR HERNÁNDEZ-ROMÁN,

Defendant, Appellant.

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

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

Before

Lynch, Selya, and Lipez, Circuit Judges.

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.

December 1, 2020 SELYA, Circuit Judge. After a lengthy trial, a jury

convicted defendant-appellant Jomar Hernández-Román of armed bank

robbery and related crimes. Following the imposition of sentence,

the defendant appeals. Concluding, as we do, that he is grasping

at straws, we affirm the judgment below.

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

- 2 - 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 18 U.S.C. § 371; armed bank

robbery (count 2), see id. § 2113(a); conspiracy to commit Hobbs

Act robbery (counts 3 and 4), see id. § 1951(a); and using,

carrying or brandishing firearms during and in relation to a crime

of violence (count 5), see id. § 924(c). Three of these five

defendants entered guilty pleas, but the defendant and Padilla

maintained their innocence. After a protracted trial, the jury

1After the robbery, the authorities recovered a matching pair of black gloves and fake facial hair when executing a search warrant at Padilla's residence.

- 3 - found the defendant guilty on all counts.2 The district court

sentenced him to serve an eighty-seven-month term of immurement.

This timely appeal followed.

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 Fed. R. Crim. P.

29(a). He argued that the government had failed to establish the

interstate nexus required for the first four counts of the

indictment and, in addition, had failed to prove that he "actually

possessed a firearm during and in relation to a crime of violence."

The district court denied his motion.

The defendant did not renew his motion for judgment of

acquittal at the close of all the evidence. See id. Nor did he

move for judgment of acquittal following the jury's verdict. See

Fed. R. Crim. P. 29(c)(1).

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

2 The jury also found Padilla guilty on all counts, and his appeal is pending.

- 4 - the commission of any crimes of violence. This attempt is doomed.

The denial of a Rule 29(a) motion, without more, does not preserve

an issue for appeal. See United States v. Maldonado-García, 446

F.3d 227, 230 (1st Cir. 2006); United States v. Hadfield, 918 F.2d

987, 996 (1st Cir. 1990). Here, there was no "more": the

defendant's failure to move for judgment of acquittal either at

the close of all the evidence or after the verdict was returned

results in a waiver. See Maldonado-García, 446 F.3d at 230. Given

the absence of a timely Rule 29 (b) or (c) motion, an appellate

court may not intercede except to prevent a clear or gross

injustice. See United States v. Tkhilaishvili, 926 F.3d 1, 18

(1st Cir. 2019); Taylor, 54 F.3d at 975.

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 18 U.S.C.

§ 371, "the government must furnish sufficient evidence of three

essential elements: an agreement, the unlawful objective of the

agreement, and an overt act in furtherance of the agreement."

United States v. Hurley, 957 F.2d 1, 4 (1st Cir. 1992). So, too,

the government must furnish sufficient evidence of "the knowing

- 5 - participation of each defendant in [the] conspiracy." United

States v. Mubayyid, 658 F.3d 35, 57 (1st Cir. 2011). The

government's proof may be either direct or circumstantial. See

United States v. Floyd, 740 F.3d 22, 28 (1st Cir. 2014); United

States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002).

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

- 6 - 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 offense of armed bank robbery. 18 U.S.C. § 2113(a),

(d). At first blush, the evidence of each of these elements seems

ample.

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

- 7 - (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 Hobbs Act proscribes conduct

that "in any way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in commerce, by robbery

or extortion or attempts or conspires so to do." 18 U.S.C.

§ 1951(a). Thus, the government was required to prove beyond a

reasonable doubt both that the defendant conspired and attempted

to commit robbery and that the conspiracy's actions affected

interstate or international commerce. See Tkhilaishvili, 926 F.3d

at 10.

- 8 - 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 the Hobbs Act.3 18 U.S.C. § 1951(b)(1).

This assertion, though, misses the mark. Upon the jury's finding

that the defendant was a member of the bank-robbery conspiracy, he

became subject to liability for the commission of the substantive

offense which — under a Pinkerton theory of liability — he could

have been held to have reasonably foreseen. See Torres, 162 F.3d

This leaves the firearms count (count 5). The defendant

asserts that no rational jury could have found him guilty of

violating 18 U.S.C. § 924(c) because he did not physically possess

any firearms during the robbery. Once again, the defendant is

aiming at the wrong target.

We have held that where, as here, Pinkerton liability is

in play, "the defendant does not need to have carried the gun

3 On appeal, the defendant has abandoned the argument — originally advanced in his Rule 29(a) motion — that the government failed to prove a sufficient nexus with interstate commerce. And at any rate, the bank that the conspiracy targeted was federally insured, so a sufficient nexus with interstate commerce plainly existed. See United States v. Benjamin, 252 F.3d 1, 9 (1st Cir. 2001) (holding that proof of federal insurance suffices to establish "at least a minimal impact on interstate commerce").

- 9 - 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. Section

924(c) provides, in relevant part, that "any person who, during

and in relation to any crime of violence . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a

firearm, shall . . . be [punished as provided]." 18 U.S.C.

§ 924(c)(3). Section 924(c)(3) then furnishes alternate

definitions for the term "crime of violence": a felony that "(A)

has as an element the use, attempted use, or threatened use of

physical force against the person or property of another," (the

force clause) or "(B) that by its nature, involves a substantial

risk that physical force against the person or property of another

may be used in the course of committing the offense" (the residual

- 10 - clause). Id.; see King v. United States, 965 F.3d 60, 64-65 (1st

Cir. 2020).

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 section 924(c)'s residual

clause, which mimics the residual clauses of the ACCA and the INA,

is also unconstitutionally vague in light of Johnson and Dimaya.

The government counters that the defendant was convicted on all of

the charged counts and that several of those counts involved

predicate offenses (specifically, armed bank robbery and Hobbs Act

robbery) that qualify as crimes of violence under section 924(c)'s

force clause. Given this circumstance, the government says, the

defendant's conviction on the firearms count is unimpugnable.

Because the defendant advances this claim of error for

the first time on appeal, our review is for plain error. See

United States v. Duarte, 246 F.3d 56, 57 (1st Cir. 2001). Plain

error review demands four showings: "(1) that an error occurred

- 11 - (2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Id. at 60. The proponent of plain error "must carry

the devoir of persuasion as to each of these four components."

United States v. Kilmartin, 944 F.3d 315, 330 (1st Cir. 2019).

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 section 924(c)

offered the defendant no avenue for relief when the predicate

offense qualified as a crime of violence under one of the other

clauses of the statutory definition. See id. at 106 (finding that

Hobbs Act robbery constituted crime of violence within the purview

of section 924(c)'s force clause).

For present purposes, we assume — as the defendant posits

— that the residual clause of section 924(c) is unconstitutionally

vague. See Johnson, 576 U.S. 596-97. Nevertheless, both Hobbs

Act robbery and armed bank robbery qualify as crimes of violence

under the force clause of section 924(c). See García-Ortiz, 904

F.3d at 107 (Hobbs Act robbery); Hunter v. United States, 873 F.3d

388, 390 (1st Cir. 2017) (armed bank robbery). As a result, any

constitutional shortcoming in section 924(c)'s residual clause

does not cast doubt upon the defendant's section 924(c) conviction.

- 12 - 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 section 924(c) conviction, holding that "[b]ecause

the jury validly reached a unanimous guilty verdict on every

predicate crime alleged," any error in the jury instructions "was

necessarily harmless." United States v. Gomez, 580 F.3d 94, 103-

04 (2d Cir. 2009). Accordingly, the instruction — even if

erroneous — did not affect the defendant's substantial rights.

See id. at 104.

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 section 924(c). It follows inexorably that, even though it

may have been error for the district court not to have required

the jury to reach consensus on a single predicate offense — a

matter on which we take no view — any such error was harmless (and,

thus, not plain).

In a final jeremiad, the defendant implores us to reverse

his firearms conviction because section 924(c) is a "rotten

- 13 - statutory disposition," which he regards as "unduly unfair and

inconsistently applied." This pejorative claim is entirely

undeveloped, and we have held before that "issues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). This is a paradigmatic example of

such a case.

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.

- 14 -