United States v. Fernandez-Jorge, No. 15-1900 (1st Cir. 2018)
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The First Circuit affirmed in part, reversed in part, and vacated in part the convictions of Angel Gabriel Fernandez-Jorge, Brian Perez-Torres, Jose A. De La Cruz-Vazquez, Edwin Otero-Díaz, Isaias Mendoza-Ortega, Edwin Otero-Marquez, and Rafael Martinez-Trinidad stemming from a shootout that took place in front of a public housing project in Humacao, Puerto Rico.
The Court held (1) sufficient evidence supported Defendants’ convictions for possession of a firearm in a school one; (2) there was insufficient evidence to support Fernandez-Jorge’s conviction for possession of a firearm in a school zone; (3) the district court erred in instructing the jury on aiding and abetting liability, which required Defendant’s convictions for possession of a firearm in a school zone to be vacated; and (4) there was insufficient evidence to support the convictions of Mendoza-Ortega and Otero-Marquez for possession of a firearm as convicted felons.
The court issued a subsequent related opinion or order on August 1, 2018.
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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, v. BRIAN PÉREZ-TORRES, Defendant, Appellant. ____________________ No. 15-2001 UNITED STATES OF AMERICA, Appellee, v. JOSÉ A. DE LA CRUZ-VÁZQUEZ, Defendant, Appellant. ____________________ No. 15-2104 UNITED STATES OF AMERICA, Appellee, v. EDWIN OTERO-DÍAZ, Defendant, Appellant. ____________________ No. 15-2168 UNITED STATES OF AMERICA, Appellee, v. ISAÍAS MENDOZA-ORTEGA, Defendant, Appellant. ____________________ No. 15-2244 UNITED STATES OF AMERICA, Appellee, v. 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. -2Mainon 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- 1 TORRUELLA, Circuit Judge. After a jury trial, Ángel 2 Gabriel Fernández-Jorge, Brian Pérez-Torres, José A. De La Cruz- 3 Vázquez, Edwin Otero-Díaz, Isaías Mendoza-Ortega, Edwin Otero- 4 Márquez, 5 "Defendants") were found guilty of possessing firearms in a school 6 zone.1 7 of possessing firearms as convicted felons. 8 then brought motions for acquittal, but the district court granted 9 only that of Fernández-Jorge. and Rafael Martínez-Trinidad (collectively, the The jury also found Mendoza-Ortega and Otero-Márquez guilty All of the Defendants Now, the government appeals the 10 district court's grant of Fernández-Jorge's motion, while Pérez- 11 Torres, De La Cruz-Vázquez, Otero-Díaz, Mendoza-Ortega, and Otero- 12 Márquez 13 district court's denial of their motions for acquittal. 14 consider whether the district court's jury instructions concerning 15 aiding and abetting liability were erroneous. 16 (collectively, the "Defendant-Appellants") appeal the We also After considering all of this, we hold the following: 17 (1) sufficient 18 convictions for possession of a firearm in a school zone (Count 19 Three); (2) sufficient evidence did not support Fernández-Jorge's 20 conviction for possession of a firearm in a school zone; (3) the 21 district court's evidence supported erroneous jury 1 the Defendant-Appellants' instructions on aiding and Martínez-Trinidad elected not to pursue an appeal following his conviction. -5- 1 abetting liability require us to vacate the Defendant-Appellants' 2 convictions for Count Three; and (4) sufficient evidence did not 3 support the convictions of Mendoza-Ortega and Otero-Márquez for 4 possession of a firearm as convicted felons, which requires us to 5 reverse their convictions for Count One. 6 I. Background 7 We begin with a brief summary of the facts and procedural 8 events leading up to this appeal, into which we shall delve with 9 greater detail in taking up the various issues the parties have 10 raised. Because this appeal pertains, in part, to the Defendants' 11 motions for acquittal before the district court, we recount the 12 facts here "in the light most favorable to the government." 13 United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018). 14 A. The shootout See 15 A shootout took place in front of the Jardines de Oriente 16 public housing project, in Humacao, Puerto Rico, during the late 17 morning of February 16, 2012. 18 Department arrived at Jardines de Oriente shortly after the gunfire 19 stopped. 20 - jumping the housing project's perimeter fence and entering the 21 large concrete tunnel behind the fence into which the Mabú creek 22 drains. 23 Rufino Vigo public elementary school (the "School"). Officers from the Puerto Rico Police They observed several people in dark clothing abscond - That tunnel runs between the Jardines de Oriente and the -6- It ends at 1 the Doctor Palou public housing project. Officers positioned 2 themselves outside of the tunnel's entrance. 3 to escape from the top of the tunnel through a manhole. 4 police fired a warning shot, one of these men, De la Cruz-Vázquez, 5 dove into some nearby bushes and was promptly arrested, searched, 6 and found to be carrying ammunition. 7 down the manhole in response to the warning shot. Two men attempted After The other man retreated back 8 Meanwhile, the officers waiting at the entrance to the 9 tunnel heard voices and the sound of gunfire from inside the 10 tunnel. The officers ordered anyone inside the tunnel to exit 11 with their hands up. 12 and unarmed -- emerged from the tunnel and were arrested. 13 then searched the tunnel and recovered seven firearms, ammunition, 14 and various articles of clothing. 15 link four of these weapons to the shootout at Jardines de Oriente. 16 Five of the Defendants stated that they lived at the 17 Doctor Palou public housing project, located at the end of the 18 tunnel opposite where the shootout occurred. 19 elsewhere in Humacao. 20 rather from San Juan. 21 B. The trials The six remaining Defendants -- all shirtless Officers Ballistics analyses would later Mendoza-Ortega lived Fernández-Jorge was not from Humacao, but 22 In February 2012, a grand jury returned an indictment 23 against the seven individuals arrested in connection with the -7- 1 shootout. 2 Mendoza-Ortega with possessing firearms as convicted felons, in 3 the principal and aiding and abetting forms. 4 922(g). 5 firearms within a school zone, also in the principal and aiding 6 and abetting forms. 7 Count One of the indictment charged Otero-Márquez and See 18 U.S.C. §§ 2, Count Three accused all seven Defendants of possessing See 18 U.S.C. §§ 2, 922(q)(2)(A).2 All of the Defendants proceeded to trial, and the jury 8 found all of them guilty on all counts. However, it then came to 9 light that, through unsanctioned research, one or more members of 10 the jury had discovered that two people died during the shootout.3 11 This forced the district court to declare a mistrial. 12 A second trial ensued, and the jury again found all 13 Defendants guilty on Count Three, and found Mendoza-Ortega and 14 Otero-Márquez guilty on Count One as well. 15 general verdict forms, which did not distinguish between the 16 principal and aiding and abetting forms of the charged offenses. 17 The Defendants proceeded to file motions for acquittal. 18 Fed. R. Crim. P. 29. 19 denied those motions in their entirety, except as to Fernández- The jury filled out See In an omnibus order, the district court 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. -8- 1 Jorge. According to the district court, the government had not 2 brought forth sufficient evidence that Fernández-Jorge -- who, 3 unlike his codefendants, did not live in Humacao -- knew or should 4 have known that he was in a school zone. 5 of the remaining Defendants to 60 months' imprisonment for Count 6 Three. 7 to an additional 120 months' imprisonment for Count One, to be 8 served consecutively with their sentences for Count Three. The court sentenced each It also sentenced both Mendoza-Ortega and Otero-Márquez 9 Now, the government appeals Fernández-Jorge's acquittal 10 and the Defendant-Appellants appeal their convictions, challenging 11 both the sufficiency of the evidence and the district court's jury 12 instructions. 13 supported all of the Defendants' convictions on Count Three, and 14 the convictions of Mendoza-Ortega and Otero-Márquez on Count One. 15 We then address whether the district court correctly instructed 16 the jury on aiding and abetting liability. 17 We first II. consider whether sufficient evidence The motions for acquittal 18 We review a district court's ruling on a Rule 29 motion 19 de novo, viewing the evidence in the light most favorable to the 20 jury's guilty verdict. United States v. Santos-Soto, 799 F.3d 49, 21 56-57 (1st Cir. 2015). The "verdict must stand unless the evidence 22 is so scant that a rational factfinder could not conclude that the 23 government proved all the essential elements of the charged crime -9- 1 beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597 2 F.3d 32, 39 (1st Cir. 2010) (emphasis in original). 3 Because Counts One and Three charged the Defendants in 4 the principal and aiding and abetting forms, we also find it useful 5 to 6 18 U.S.C. § 2 provides that anyone who aids or abets a crime 7 against the United States "is punishable as a principal."4 8 "is liable under § 2 for aiding and abetting a crime if (and only 9 if) he (1) takes an affirmative act in furtherance of that offense, 10 (2) with the intent of facilitating the offense's commission." 11 United States v. Encarnación-Ruiz, 787 F.3d 581, 587 (1st Cir. 12 2015) (quoting Rosemond v. United States, 134 S. Ct. 1240, 1245 13 (2014)). 14 need not have actually assisted the principal in committing each 15 element of the crime. 16 "intend[ed] 17 charged.'" review the essentials of aiding and abetting liability. One To be guilty of aiding and abetting a crime, a defendant to Id. facilitate But, the defendant does need to have 'the entire crime Id. (quoting Rosemond, 134 S. Ct. at 1248). As a 4 specific and 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. -10- 1 result, the defendant must have had "advance knowledge" of the 2 crime he or she facilitated to be guilty of aiding and abetting 3 it. 4 United States v. Ford, 821 F.3d 63, 69 (1st Cir. 2016). 5 "[p]roving beyond a reasonable doubt that a specific person is the 6 principal is not an element of the crime of aiding and abetting." 7 United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982). Id. at 588 (quoting Rosemond, 134 S. Ct. at 1249); see also Finally, 8 9 10 11 A. The Defendant-Appellants' motions for acquittal on Count Three 12 29 motions as to the possession of a firearm in a school zone 13 count, 14 arguments. First, all of the Defendant-Appellants argue that the 15 government did 16 possessed the firearms recovered from the tunnel. 17 Cruz-Vázquez and Otero-Díaz assert that the government failed to 18 sufficiently establish that they were, in fact, within a school 19 zone. 20 and Otero-Díaz argue that sufficient evidence did not support the 21 conclusion that they knew or should have known that they were in 22 a school zone. 23 In attacking the district court's denial of their Rule the Defendant-Appellants not introduce advance sufficient three categories evidence that of they Second, De la Finally, Pérez-Torres, De la Cruz-Vázquez, Mendoza-Ortega, 1. Possession of firearms 24 We begin by considering whether any rational fact-finder 25 could have concluded beyond a reasonable doubt that the Defendant-11- 1 Appellants possessed firearms or aided and abetted each other in 2 doing so with advance knowledge of this element.5 3 134 S. Ct. at 1249; Rodríguez-Vélez, 597 at 39. 4 See Rosemond, "'Knowing possession of a firearm' may be proven through 5 either actual or constructive possession." United States v. 6 Guzmán-Montañez, 2014). 7 constructive 8 defendant had "the power and intention of exercising dominion and 9 control over the firearm." Id. (citing United States v. DeCologero, 756 F.3d possession, 1, in 8 (1st turn, Cir. requires proving Proving that the 10 530 F.3d 36, 67 (1st Cir. 2008)). Constructive possession may be 11 joint. 12 to 13 circumstantial evidence. 14 States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)). 15 "mere presence with or proximity to weapons or association with 16 another 17 circumstantially establish constructive possession. United States 18 v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009). 19 is necessary to show "some action, some word, or some conduct that DeCologero, 530 F.3d at 67. prove constructive who possesses possession Additionally, it is possible by relying entirely upon Guzmán-Montañez, 756 at 8 (citing United a weapon" 5 is However, insufficient to Rather, it 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). -12- 1 links the individual to the contraband and indicates that he had 2 some stake in it, some power over it." 3 409 F.3d 492, 501 (1st Cir. 2005) (quoting In re Sealed Case, 105 4 F.3d 5 circumstantial 6 evidence of an individual's "control over the area where the 7 contraband is found." 1460, 1463 (D.C. evidence Cir. of United States v. McLean, 1997)). For constructive example, possession valid includes Id. 8 Though no witnesses testified to having seen any of the 9 Defendant-Appellants possessing a weapon, the government contends 10 that it introduced ample circumstantial evidence of possession. 11 We now review that evidence. 12 First, Officer Ángel Fontánez testified that he was on 13 motorcycle patrol near Jardines de Oriente on the morning of 14 February 16, 2012, when he heard the sound of gunfire emanating 15 from 16 supporting 17 subsided, he approached Jardines de Oriente on his motorcycle. 18 Though some buildings partially obstructed his view, he saw seven 19 or eight individuals -- several of them wearing dark clothing -- 20 running towards a fence at the back of Jardines de Oriente. 21 said that he then observed three or four people scale that fence 22 and head toward the entrance of a tunnel located on the other side. the housing column project. of a Fontánez nearby bridge, -13- took and cover once behind the the gunfire He 1 Fontánez hurried to the tunnel's entrance, where several other 2 officers had also gathered. 3 Fontánez then testified that, while positioned outside 4 the entrance, he heard voices and the sound of gunfire from within 5 the tunnel. 6 a manhole atop the tunnel and attempted to flee. 7 did not heed Fontánez's order to freeze, he fired a warning shot. 8 In response, one of the two individuals retreated back down the 9 manhole, while the other dove into some nearby bushes. According to Fontánez, two people then emerged from When those two The bushes, 10 however, provided ineffective cover, and officers arrested this 11 individual 12 Fontánez described as wearing a black jacket and gloves -- and 13 discovered a magazine containing around 30 bullets in his pocket. 14 Officer 15 testimony 16 ammunition on him after he surfaced from the manhole.6 (later Víctor about identified Cruz-Sánchez arresting as De la Cruz-Vázquez) corroborated De la Officer Cruz-Vázquez -- whom Fontánez's and finding 17 Agent José López-Ortiz testified that he was on patrol 18 when he received a radio call about the events transpiring at 19 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. -14- 1 vehicle and waited underneath the same bridge as Fontánez, along 2 with other officers, until the sound of gunfire coming from 3 Jardines de Oriente relented. 4 and Fontánez approached Jardines de Oriente together, he saw three 5 people dressed in black jump over a fence and into a ditch on the 6 other side. 7 ran into a tunnel, at which point he lost sight of them. López-Ortiz testified that, as he From there, López-Ortiz explained, those individuals 8 The jury also heard testimony from Puerto Rico Police 9 Agent Abdel Morales-De León, another of the officers who responded 10 to the shootout at Jardines de Oriente. 11 hearing male voices and gunfire from within the tunnel as he 12 approached its entrance alongside other officers. 13 males then emerged from the tunnel and were promptly detained.7 14 Morales-De 15 described as appearing recently discharged -- from the ground where León recovered a He too testified about .233-caliber 7 bullet Six shirtless -- which he 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. -15- 1 these individuals were arrested. 2 a group of officers, using a small flashlight to light their way. 3 Morales-De León explained that their search of the tunnel turned 4 up 5 magazines, and various articles of dark clothing. 6 the officers noticed fresh mud prints on the steps leading up to 7 a manhole connecting the tunnel to the surface, and that the 8 manhole cover had been removed. seven 9 firearms, a fanny He then entered the tunnel with pack containing several loaded He added that Officer Daniel Rosas-Rivera also provided an account of 10 his role in responding to the shootout and subsequent events. 11 described hearing gunfire from within the tunnel as he approached 12 it alongside other officers. 13 observed six shirtless men emerge from the tunnel with their hands 14 up, exclaiming "don't shoot us." 15 officers who entered the tunnel with a flashlight immediately after 16 the Defendants' arrest. 17 tunnel revealed that it was possible to exit the tunnel via a 18 manhole, and that they found that manhole open, its cover having 19 been moved aside. 20 search of the tunnel yielded a bullet, loaded firearms, and 21 magazines. 22 23 He He then told the jury that he Rosas-Rivera was also among the He testified that their sweep of the Rosas-Rivera also explained that the officers' Gualberto Rivas-Delgado testified about the investigation of the tunnel that he undertook as a member of the -16- 1 Puerto Rico Police's Technical Services Division. 2 scene at around 4:00 p.m. on the day of the shootout, after Rosas- 3 Rivera and Morales-De León had completed the initial sweep of the 4 tunnel about which they testified. 5 ammunition inside of the tunnel -- some of it submerged in puddles, 6 and some sealed in a plastic bag -- as well as additional articles 7 of clothing, most of them dark in color. 8 9 Finally, the jury heard He arrived on- Rivas-Delgado found more testimony from Edward Pérez-Benítez, a firearms examiner and tool marks expert from 10 Puerto Rico's Institute of Forensic Sciences. 11 he had examined the weapons recovered from the tunnel and bullets 12 recovered from the site of the shootout at Jardines de Oriente. 13 His investigation led him to conclude that four of the guns found 14 in the tunnel had been used in the shootout. 15 In synthesis, the jury heard the He explained that following: (1) a 16 shooting had occurred in the Jardines de Oriente on the morning of 17 February 16, 2012; (2) seven or eight individuals in dark clothing 18 were seen fleeing the scene of the shooting; (3) officers saw three 19 or four of these men enter a tunnel; (4) De la Cruz-Vázquez was 20 arrested, shirtless, after trying to escape from a manhole atop 21 the tunnel, and was found to be carrying a loaded magazine; (5) 22 officers standing at the entrance to the tunnel heard weapons 23 discharge inside the tunnel; (6) the remaining six Defendants then -17- 1 emerged, shirtless, from the tunnel and were arrested; (7) officers 2 recovered seven firearms, ammunition, and various articles of dark 3 clothing from within the tunnel; and (8) a ballistics expert linked 4 four of those firearms to the shootout at Jardines de Oriente. 5 All of this is sufficient evidence for a rational fact- 6 finder to conclude that at least one of the Defendant-Appellants 7 possessed a firearm, while the remainder aided and abetted him. 8 See Campa, 679 F.2d at 1013 (identity of principal not an element 9 of aiding and abetting). And that is sufficient to sustain the 10 Defendant-Appellants' Count Three convictions. The first component 11 of this conclusion, that at least one of the seven Defendants 12 possessed a firearm, is particularly unavoidable given that four 13 of the weapons found in the tunnel had been fired during the 14 shootout. 15 element of the underlying offense is an element of aiding and 16 abetting, see Rosemond, 134 S. Ct. at 1249, we agree with the 17 government that the evidence here does tend to suggest that the 18 Defendant-Appellants had advance knowledge of, and participated in 19 some form in, the shootout. 20 would allow a rational fact-finder to conclude that any Defendant- 21 Appellants who were not principals (because they did not possess 22 firearms) nonetheless facilitated the principal or principals' Further, keeping in mind that advance knowledge of each Thus, we think that the evidence -18- 1 possession, with advance knowledge of this element. 2 to the remaining elements of Count Three. 3 We now turn 2. Actual presence in a school zone 4 We now take up the assertion of De La Cruz-Vázquez and 5 Otero-Díaz that the government failed to establish that they were, 6 in fact, in a school zone when they allegedly possessed a firearm. 7 A "school zone" is the area within 1,000 feet from the grounds of 8 any school. 9 (1st Cir. 2007) (quoting 18 U.S.C. § 921(a)(25)). United States v. Nieves-Castaño, 480 F.3d 597, 603 We note that 10 the proper inquiry here -- given the possibility for aiding and 11 abetting liability -- is whether any of the Defendants found 12 himself in a school zone while possessing a firearm. 13 At trial, government witness and Puerto Rico Police 14 Officer José Hiraldo-Benítez explained his conclusion, which he 15 reached by employing distance-measuring laser equipment, that 710 16 feet separated the School's perimeter fence and the point in the 17 tunnel where the weapons were found. 18 804 and 837 feet separated the School's fence from two points where 19 spent shell casings from the shootout had been found.8 20 according 21 measurements was less than one inch. to Hiraldo-Benítez, the 8 He likewise explained that margin of error Hiraldo-Benítez's measurements relied on other representations of where the weapons in the tunnel. -19- Finally, for these officers' 1 We find this to be sufficient evidence to support the 2 conclusion that one or more of the Defendants possessed firearms 3 within a school zone. 4 Benítez may have arrived at his figure of 710 feet by measuring 5 from a point atop the tunnel that did not necessarily lay precisely 6 over the point in the tunnel where the weapons were found. 7 theoretical possibility does not, however, mean that no reasonable 8 fact-finder 9 Appellants possessed firearms anywhere within 1,000 feet of the 10 could De La Cruz-Vázquez stresses that Hiraldo- have concluded that any of the This Defendant- School. 11 First, a reasonable fact-finder could well have 12 concluded that Hiraldo-Benítez did measure from the correct point 13 atop the tunnel. 14 reasons that De la Cruz-Vázquez offers to believe that Hiraldo- 15 Benítez 16 Hiraldo-Benítez did measure from the wrong point, that still would 17 not 18 Appellants possessed firearms in a school zone. 19 least four of the guns traveled from the site of the shootout to 20 the tunnel, the precise location in the tunnel where they were 21 found is of lesser importance. 22 Vázquez does not dispute that shell casings were found within the 23 school zone. And this strongly suggests that the shootout involved measured foreclose This is particularly so given the paucity of from the an incorrect reasonable point. conclusion Second, that the even if Defendant- Given that at We further note that De la Cruz- -20- 1 guns being fired, and therefore possessed, within a school zone. 2 De la Cruz-Vázquez and Otero-Díaz, therefore, come up quite short 3 in attempting to convince us that no reasonable factfinder could 4 have concluded that any of the Defendants possessed a firearm 5 within 1,000 feet of the School. 6 now take up the final disputed element of Count Three. 7 Having resolved that point, we 3. Knowing presence in a school zone 8 We next consider whether each of the Defendant- 9 Appellants knew or should have known that they were in a school 10 zone while they were possessing a firearm or, alternatively, that 11 each of them was aiding and abetting such possession of a firearm 12 in a school zone with the requisite advance knowledge. 13 18 U.S.C. §§ 2, 922(q)(2)(A). 14 as the solitary proof of one's culpable knowledge. United States 15 v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). However, in 16 Guzmán-Montañez, we overturned the defendant's conviction under 17 § 922(q)(2)(A) when the government, in attempting to establish the 18 defendant's knowledge that he was in a school zone, relied solely 19 upon the school's proximity to the location where the defendant 20 was found armed. 21 factfinder could not have made this "giant leap of faith," we 22 stressed in particular that the defendant was not a resident of 23 that area. Circumstantial evidence may serve 756 F.3d at 11-12. Id. at 12. See In concluding that a rational This contrasts with our holding in Nieves- -21- 1 Castaño. 2 defendant's knowledge, we emphasized that "three minor children 3 lived with the defendant, and it would be easy for a jury to 4 conclude that she knew there were two schools nearby, within or 5 just outside her housing project and less than 1000 feet away, and 6 that she regularly passed by those schools." 7 Here, the evidence of the Defendant-Appellants' knowledge of the 8 school zone seems to fall between these two poles. 9 There, in reaching the opposite conclusion about the 480 F.3d at 604. The government makes a number of arguments in support of 10 the district court's determination that sufficient evidence 11 established that the Defendant-Appellants either knew or should 12 have known that they were in a school zone. 13 largely to the same evidence we considered in addressing their 14 actual presence in a school zone -- the government stresses that 15 the Defendant-Appellants found themselves in close proximity to 16 the School at the relevant times. 17 highlights that the School's basketball court was approximately 50 18 feet from the fence that the Defendant-Appellants scaled en route 19 to the tunnel. 20 roof was also visible from Jardines de Oriente. 21 -- especially given that nothing about the roof of this basketball 22 court suggested that it was part of a school -- this evidence would 23 not suffice. First -- pointing Specifically, the government The government adds that the basketball court's But, on its own See Guzmán-Montañez, 756 F.3d at 11-12. -22- However, 1 this is not 2 the extent of the evidence that the government introduced. 3 The government also avers that it would be reasonable 4 for the jury to have inferred that the Defendant-Appellants put 5 some amount of forethought into the shootout and their subsequent 6 escape. 7 Jardines de Oriente and into the tunnel, the government says, 8 suggests they had planned out this endeavor beforehand. 9 result, the government tells us, a rational fact-finder could 10 certainly infer that, in undertaking all of this planning, the 11 Defendants would have realized that there was a school nearby. The swiftness of the Defendant-Appellants' flight from And as a 12 Furthermore, the government reminds us that all of the 13 Defendant-Appellants were residents of Humacao, and that all of 14 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 codefendants 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 -23- 1 Government witness Officer Lebrón-Delgado testified that he had 2 seen Mendoza-Ortega at Dr. Palou before the date of the shootout. 3 And this is all particularly important because the School, a two- 4 story building, is located on the same street as Dr. Palou. 5 Additionally, the front of the School features signage identifying 6 it as an elementary school. 7 We think that all of this would allow a reasonable fact- 8 finder to conclude that all of the Defendant-Appellants either 9 knew or should have known that they were in a school zone. It is 10 difficult to imagine that the four Defendant-Appellants who lived 11 at Dr. Palou were unaware of the existence of a school on the same 12 street. 13 nonetheless find it reasonable to conclude that -- as a resident 14 of Humacao who had visited Dr. Palou before -- he at least should 15 have known that he was in a school zone. 16 reasons, we also find it reasonable to conclude for Rule 29 17 purposes that the Defendant-Appellants all had "advance knowledge" 18 of the School's location for purposes of aiding and abetting 19 liability. Though Mendoza-Ortega did not live at Dr. Palou, we And for these same 20 In summary, given the evidence at trial, a rational fact- 21 finder could conclude the following: (1) at least one of the and Otero-Márquez should have known they were in a school zone. -24- 1 Defendant-Appellants possessed a firearm, while the others aided 2 and 3 Appellant(s) who possessed a firearm did so while in a school zone; 4 and (3) all of the Defendant-Appellants had advance knowledge of 5 the School's location. 6 introduce 7 culpability on Count Three, and that the district court did not 8 err in denying their Rule 29 motions as to that Count. 9 B. Fernández-Jorge's motion for acquittal on Count Three 10 abetted him with sufficient advance knowledge; (2) the Defendant- Thus, we hold that the government did evidence of the Defendant-Appellants' We now take up the government's challenge to the district 11 court's grant of Fernández-Jorge's motion for acquittal. 12 thrust of the government's challenge is that, while not a resident 13 of 14 nonetheless had ample reason to know he was in a school zone. 15 so arguing, the government leans on evidence that the School 16 (though not any signage identifying it as such) was visible from 17 the entrance to Jardines de Oriente and nearby roads, and on the 18 ostensibly planned nature of the shootout and the Defendants' 19 flight from it -- which, according to the government, suggests a 20 certain level of familiarity with the area.10 Humacao like the Defendant-Appellants, 10 The Fernández-Jorge In 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 -25- 1 But a number of considerations cut in the opposite 2 direction. For one, as Fernández-Jorge stresses, none of the 3 police officers who testified at trial had ever seen him in Humacao 4 before the shootout. 5 any evidence that Fernández-Jorge had ever visited Humacao before 6 the morning of the shootout. 7 the School actually visible from Jardines de Oriente is the roof 8 of its basketball court, which, again, provides no indication that 9 it is part of a school. In fact, the government did not introduce And we recall that the only part of Additionally, while it is possible that 10 Fernández-Jorge, who lived in San Juan, may have passed the 11 School's front entrance and seen the signs identifying it as a 12 school on his way to Humacao, this is not necessarily so. 13 Fernández-Jorge posits that in traveling to Jardines de Oriente 14 from San Juan, one "would ordinarily take the more direct route," 15 which does not involve driving past the School's front entrance. 16 Setting aside the question of whether this route is in fact the For, 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. -26- 1 most intuitive or direct, we do take note of the existence of an 2 alternative route -- a point the government concedes -- that would 3 not have taken Fernández-Jorge past the front of the School. 4 In sum, the government's arguments do not differ 5 significantly from those that we rejected in Guzmán-Montáñez. See 6 756 F.3d at 11-12. 7 a variation of imputing knowledge of a school zone though mere 8 physical proximity to a school involve the shootout's apparent 9 premeditation The government's only arguments that are not and coordination, and the possibility that 10 Fernández-Jorge drove past the front of the School on his way to 11 Jardines de Oriente.11 12 But, even assuming that the Defendants did plan the 13 shootout together, this would not have required them to have all 14 visited 15 Fernández-Jorge 16 irrelevance to both the apparent objective of the Defendants' plan 17 (to go to Jardines de Oriente and shoot firearms), and their Jardines in de Oriente tow. and its Additionally, 11 surrounding the area School's with seeming 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. -27- 1 attempted escape through the tunnel, also weakens the suggestion 2 that 3 knowledge of the school zone. 4 certain possibility that Fernández-Jorge would have driven past 5 the School en route to Jardines de Oriente insufficient to tip the 6 scales towards the reasonable conclusion that he knew or should 7 have known of its location. 8 12 -- particularly in the absence of any evidence that Fernández- 9 Jorge had previously been to Humacao, or about how and from where 10 he arrived at Jardines de Oriente on the day of the shootout -- is 11 too large for a rational fact-finder to have made. Therefore, 12 because sufficient 13 evidence supported the conclusion, beyond a reasonable doubt, that 14 Fernández-Jorge knew or should have known of the School's location, 15 we affirm the district court's grant of his motion for acquittal. 16 17 18 19 C. Mendoza-Ortega and Otero-Márquez's motions for acquittal on Count One 20 and 21 principal and aiding and abetting forms -- we begin by highlighting 22 that Mendoza-Ortega and Otero-Márquez, and nobody else, stipulated 23 that they had been previously convicted of crimes potentially 24 punishable with over one year of imprisonment, a necessary element 25 of that offense. their the advance planning government would imply Fernández-Jorge's And we also find the less-than- This inferential "leap," see id. at fails to convince us that Turning now to Count One -- which charged Mendoza-Ortega Otero-Márquez with possessing firearms See 18 U.S.C. § 922(g). -28- as felons in the Now, in reviewing the 1 district court's denial of their motions for acquittal as to that 2 count, we ask if a rational fact-finder could have reached either 3 of the following conclusions: (1) that Otero-Márquez and Mendoza- 4 Ortega 5 individuals possessed a firearm while the other aided and abetted 6 him. This is so because these two are the only previously convicted 7 felons among the Defendant-Appellants. 8 point. 9 possessed a firearm and that the rest of the Defendants have aided 10 and abetted that person, Count One requires that at least one of 11 two specific individuals -- that is, those with prior felony 12 convictions -- possessed a firearm. 13 both possessed firearms; or (2) that one of these And this is a crucial For, while Count Three required only that someone have Harkening back to our earlier discussion of the 14 government witnesses' trial testimony, see supra § II.A.1, while 15 it is plain that at least one of the Defendants possessed firearms, 16 there is scant evidence providing insight into who among the 17 Defendants that may have been. 18 face an uphill battle in attempting to show that any particular 19 Defendant possessed a firearm, the government maintains that the 20 evidence "permits the inference" that each of the seven Defendants 21 possessed one of the seven firearms that police later found in the 22 tunnel. 23 particular possessed a firearm would be equally applicable to the Perhaps recognizing that it would And because the evidence that any one Defendant in -29- 1 remaining Defendants,12 it seems that the only possible conclusions 2 to draw, for Rule 29 purposes, are that: (1) all seven Defendants 3 possessed their own firearm; or (2) it is impossible to know which 4 of the Defendants possessed firearms. As a result of all of this, 5 our rational 6 concluded 7 Defendants possessed exactly one firearm? Or, alternatively, we 8 can government 9 sufficient evidence that none of the Defendants were unarmed. inquiry frame becomes beyond the a this: Could reasonable question as a doubt whether that the fact-finder each of the have seven introduced 10 In assessing whether the jury could permissibly conclude 11 that, because the number of Defendants corresponds to the number 12 of guns, each Defendant had one gun, we find it significant that 13 only four of the guns were linked to the shootout. 14 of the strongest arguments against the notion that one or more of 15 the Defendants was unarmed is essentially "who in the world would 16 participate in a planned shootout unarmed?" 17 in theory, this argument loses much of its persuasiveness here, 18 when applied to the facts established at trial. In theory, one But, while convincing 19 We are confident in our conclusion, as discussed with 20 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. -30- 1 concluded on the basis of the evidence at trial that the Defendant- 2 Appellants had advance knowledge that one of their number possessed 3 a firearm during the shootout in which they participated in some 4 form. 5 Defendants were involved in the shootout -- in some form -- was 6 strong enough to serve as the basis for the further inferential 7 leaps that are still necessary to land at the conclusion that all 8 seven Defendants possessed a firearm. 9 light of our reluctance to "stack inference upon inference in order But, it does not follow that the evidence that all seven This is particularly so in 10 to uphold the jury's verdict." 11 1, 10 (1st Cir. 2012) (quoting United States v. Valerio, 48 F.3d 12 58, 64 (1st Cir. 1995)); see also United States v. Ruiz, 105 F.3d 13 1492, 14 sufficient evidence to uphold a verdict, we disfavor stacking 15 inferences 16 circumstantial evidence). 1500 (while to United States v. Burgos, 703 F.3d circumstantial uphold a evidence conviction on the alone may basis of provide purely 17 Keeping in mind, once more, that only four of the seven 18 guns were linked to the shootout, we are left with competing 19 explanations 20 Defendants, while armed, simply elected not to shoot during the 21 shootout. 22 guns that were linked to the shootout also possessed additional 23 firearms as to why. It could be because three of the Or, it could also be that the Defendants who fired the that they did not use -31- during the shootout. Or a 1 combination of these two things is also possible (e.g., two 2 Defendants were unarmed, and two Defendants each possessed two 3 guns, but only fired one).13 4 sufficient evidence for a rational jury to have concluded, beyond 5 a reasonable doubt, that any of these scenarios was actually the 6 case here. 7 (1st Cir. 1995) (reversal is required when "an equal or nearly 8 equal theory of guilt and a theory of innocence is supported by 9 the evidence viewed in the light most favorable to the prosecution, 10 [because in such a case] a reasonable jury must necessarily 11 entertain a reasonable doubt") (alteration in original). We thus conclude that there was not See United States v. Flores-Rivera, 56 F.3d 319, 323 12 In summary, as the only Defendants previously convicted 13 of felonies, to convict Otero-Márquez and Mendoza-Ortega on Count 14 One, the government needed to show that at least one of those two 15 possessed a firearm. 16 either was more likely than the remaining Defendants to have 17 possessed firearms, to show that either of those two individuals 18 possessed a firearm, the government needed to put on sufficient 19 evidence that all seven Defendants did so. To arrive at that 20 conclusion, first the jury And, in the absence of any evidence that would have 13 had to infer from 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. -32- 1 circumstantial evidence that all seven Defendants were involved in 2 the shootout in some capacity, and then reject the possibility 3 that any of the Defendants possessed more than one firearm. 4 upholding the jury's verdict would require us to sanction both 5 stacking inferences and choosing between two "equal or nearly 6 equal" theories. 7 F.3d at 10. 8 fact-finder could not have found beyond a reasonable doubt that 9 Otero-Márquez or Mendoza-Ortega possessed a firearm. that Thus, Flores-Rivera, 56 F.3d at 323; see Burgos, 703 We decline to do so here, and hold that a rational 10 hold the 11 individuals' motions for acquittal on Count One. III. 12 district court erred in We therefore denying those two The Jury Instructions for Count Three 13 Having concluded that sufficient evidence supported the 14 Defendant-Appellants' Count Three convictions, we now take up the 15 question of whether the district court's jury instructions for 16 that Count were erroneous.14 17 Ortega 18 forthcoming 19 knowledge" requirement, see 134 S. Ct. at 1249. 20 joined that request at the charge conference. filed a jury motion At the end of the trial, Mendoza- requesting instructions 14 that the reflect district Rosemond's court's "advance Otero-Márquez On appeal, Mendoza- 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. -33- 1 Ortega and Pérez-Torres both assert that, because they failed to 2 take 3 abetting instructions for Count Three were erroneous. Rosemond 4 into account, the district court's aiding and This argument having been duly preserved, we must now 5 determine de novo whether the requested instruction was 6 "substantially covered by" the instruction that the district court 7 actually gave. 8 Cir. 2013); see also United States v. Godin, 534 F.3d 51, 56 (1st 9 Cir. 2008) (our review of whether a trial court's jury instructions United States v. Baird, 712 F.3d 623, 628 (1st 10 captured 11 Moreover, it is of no import that the jury returned a general 12 verdict here that did not distinguish between the principal and 13 aiding and abetting forms of the offense. 14 cannot stand when it may have rested on constitutionally invalid 15 grounds. 16 ("[W]here a provision of the Constitution forbids conviction on a 17 particular ground, the constitutional guarantee is violated by a 18 general verdict that may have rested on that ground.") (citing 19 Stromberg v. California, 283 U.S. 359, 568 (1931)). the elements of the relevant offense is de novo). A general guilty verdict See Griffin v. United States, 502 U.S. 46, 53 (1991) 20 In light of the request made below, we must determine 21 whether the district court's instructions adequately captured and 22 impressed upon the jury Rosemond's requirement that to be guilty 23 of aiding and abetting an offense, a defendant must have had -34- 1 advance knowledge of each element of the offense. 2 clarifies, 3 defendant] to make the relevant legal (and indeed, moral) choice." 4 134 S. Ct. at 1249. 5 of the principal's plan to commit the underlying offense with 6 sufficient anticipation to be able to "attempt to alter that plan 7 or, if unsuccessful, withdraw from the enterprise." 8 then may aiding and abetting liability attach. "advance knowledge" is "knowledge that As Rosemond enables [a That is, the would-be accomplice must know Id. Only 9 Here, the district court instructed the jury that, to 10 find the Defendants guilty of Count Three in the aiding and 11 abetting modality, it needed to find, beyond a reasonable doubt, 12 first that a principal committed the crimes charged, and "[s]econd, 13 that the charged defendants consciously shared the other person's 14 knowledge of the crimes charged in the indictment, intended to 15 help each other, and took part in the endeavor, seeking to make it 16 succeed." 17 Whether this formulation runs afoul of Rosemond depends 18 on whether "seeking to make it succeed" applies to all of the 19 clauses that precede it, or only to its immediate predecessor: 20 "took part in the endeavor." 21 clauses, then we have no Rosemond problem because the instructions 22 would require the jury to find that an alleged aider and abettor 23 knew that the principal was to commit the crime of possessing a If it applies to all of the preceding -35- 1 gun in a school zone when he leant his assistance with the intent 2 to make the criminal endeavor succeed. 3 with Rosemond's advance knowledge requirement. 4 "it" in "seeking to make it succeed" refers only to "the endeavor," 5 then we do have a Rosemond problem. 6 would allow the jury to find a defendant guilty of aiding and 7 abetting when the defendant (1) "took part in the endeavor, seeking 8 to make it succeed" by (2) assisting the principal in bringing a 9 gun to a particular location, and only then, upon realizing that 10 this location was in a school zone, (3) "consciously shared" the 11 principal's knowledge of the crime. 12 of the instruction does not require the government to have proven 13 that the aider and abettor shared the defendant's knowledge of the 14 crime before or even at the moment when he chose to lend his 15 assistance.15 That would be consistent But if the pronoun In that case, the instructions That is, this interpretation And that would conflict with Rosemond. 15 It 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)]." -36- 1 This second possible interpretation seems the more 2 likely of the two because the instruction uses the singular 3 "seeking to make it succeed," making it unlikely that this clause 4 was meant to apply to the entire list of things preceding it, which 5 includes the plural "crimes charged in the indictment." 6 minimum, it is distinctly possible that the jury interpreted the 7 instructions this way. 8 faced with ambiguous jury instructions, the proper inquiry is 9 "'whether there is a reasonable likelihood that the jury has 10 applied the challenged instruction in a way' that violates the 11 Constitution." 72 (1991) 12 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). And it 13 would indeed violate the Constitution if the jury convicted the 14 Defendants on Count Three without the government having proven all 15 of the offense's elements -- including "advance knowledge" -- 16 beyond a reasonable doubt. 17 197, 210 (1977) ("[T]he Due Process Clause requires the prosecution 18 to prove beyond a reasonable doubt all of the elements included in 19 the definition of the offense of which the defendant is charged."). 20 Finally, before vacating convictions as the result of As the Supreme Court has explained, when Estelle error, At a we v. McGuire, 502 U.S. 62, See Patterson v. New York, 432 U.S. 21 instructional must assess whether that 22 harmless. 23 accord Hedgpeth v. Pulido, 555 U.S. 58, 61 (2008). error was See Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir. 1996); -37- When jury 1 instructions fail to account for an element of the crime charged, 2 that error is harmless only if we can conclude "beyond a reasonable 3 doubt that the omitted element was uncontested and supported by 4 overwhelming evidence, such that the jury verdict would have been 5 the same absent the error." 6 284, 297-98 (1st Cir. 2014) (quoting Neder v. United States, 527 7 U.S. 1, 17 (1999)). 8 the district court's instructional error was harmless. United States v. Pizarro, 772 F.3d Here, this does not allow us to conclude that 9 First, given the centrality at trial of the question of 10 whether the Defendants knew of the School's location, we cannot 11 describe 12 Moreover while we have concluded that, for Rule 29 purposes, a 13 rational fact-finder could have found that the Defendants knew or 14 should have known they were in a school zone, that requires far 15 less than "overwhelming" evidence. 16 overwhelming evidence established that the Defendant-Appellants 17 had advance knowledge that the principal was to possess a firearm 18 within 1,000 feet of a school. 19 district 20 harmless. 21 the element court's of aiding "advance knowledge" as uncontested. In the end, we cannot say that And so the error that infected the and abetting instructions was not To conclude, there is a "reasonable likelihood" that the 22 jury interpreted the district 23 instructions in a way that violates Rosemond. -38- court's aiding and abetting See Estelle, 502 1 U.S. at 72. That error was not harmless. See Pizarro, 772 at 2 297-98. 3 rested on a constitutionally impermissible ground, see Griffin, 4 502 U.S. at 53, we must vacate the district court's judgments of 5 guilty as to Count Three for all of the Defendant-Appellants.16 Therefore, because the jury's general verdict could have 16 We have one last loose end to tie up. Not all of the DefendantAppellants 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 DefendantAppellants 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 DefendantAppellants 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 -39- 1 IV. Conclusion 2 While the Defendant-Appellants have raised additional 3 claims of evidentiary error and challenges to their sentences, we 4 need not reach them. 5 & n.1 (1st Cir. 2012) (vacating because of instructional error and 6 then 7 remaining assignments of trial and sentencing error" because "[i]t 8 is unlikely that any of these claims will arise in the same posture 9 if the case is retried"). With regard to Fernández-Jorge, the 10 district is 11 Defendant-Appellants, the district court's judgment is reversed as 12 to Count One and vacated as to Count Three. 13 declining court's "to See United States v. Sasso, 695 F.3d 25, 31 rule judgment gratuitously upon affirmed. With the defendant's regard to the 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). -40-
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