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Media Alerts - United States of America v. Prado - Second Circuit
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February 25, 2016
  United States of America v. Prado - Second Circuit
Headline: Second Circuit Holds General Jury Instructions for Aiding and Abetting Knowing and Intentional Use of a Firearm Charge are Insufficient and Plainly Erroneous.

Area of Law: Criminal Law

Issue(s) Presented: Whether the jury should have been instructed that it was required to find the defendants joined a criminal venture with full knowledge of its scope, including advance knowledge of a gun at a time the defendant could have withdrawn from the scheme.

Brief Summary: Heriberto Martinez was convicted of fourteen counts related to racketeering activity and three murders and Carlos Ortega was convicted of twelve counts related to racketeering activity and two murders (collectively the "defendants"). In particular, both defendants were convicted of aiding and abetting a violation of 18 U.S.C. § 924(c), using or carrying a firearm in relation to a crime of violence or possessing a firearm in furtherance of that crime, in connection with a murder. At trial, the United States District Court for the Eastern District of New York gave the jury general instructions on aiding and abetting liability and both defendants were found guilty.

The Second Circuit held that in the wake of the 2014 United States Supreme Court decision in Rosemond v. United States, general instructions on aiding and abetting liability that do not require the jury to find that the defendant had advance knowledge that a confederate would be armed are insufficient and plainly erroneous. In addition, the Second Circuit held that this error affected Ortega's, but not Martinez's, substantial rights, and therefore vacated Ortega's aiding and abetting conviction.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...183b70cdb87/1/hilite/

Extended Summary: In March 2010, Martinez and Ortega, members of the gang La Mara Salvatrucha, also known as MS-13, met at the home of Jeremias Amaya, to discuss Quijada, another member of MS-13. The group discussed that Quijada "wasn't running properly," that he "was not good for the Mara because he only caused problems," and that "he only caused problems and never sold a thing." Because of these problems, the MS-13 members present decided that they would require Quijada to kill a rival gang member to prove himself. The group picked up Quijada and drove around looking for rival gang members for Quijada to kill, but were unable to find any. Quijada was dropped off at home and the rest of the group returned to Amaya's home where they unanimously voted to pick Quijada up and kill him.

Following the meeting, the group called Quijada and told him they were coming to pick him up because they had found a rival gang member. The group went to get Quijada, and brought him to the beach. Prior to leaving for the beach, Martinez grabbed a machete. At the beach, Amaya took out a gun to shoot Quijada, but the gun jammed. Martinez gave Amaya the machete, which Amaya then used to stab Quijada. Another MS-13 member then stabbed Quijada with a kitchen knife. Quijada was ultimately stabbed to death. There was no evidence that Ortega participated in the assault on and murder of Quijada after the gun appeared, however, he was present the entire time.

Count 21 of the indictment charged Martinez and Ortega with brandishing a firearm during a crime of violence in connection with the murder of Quijada. The indictment charged them with 18 U.S.C. §924(c)(1)(A)(ii), (c)(1)(C) and 18 U.S.C. §2. For both charges, the United States District Court for the Eastern District of New York gave the jury general instructions on aiding and abetting liability that, in pertinent part, required the jury to find that "the defendants intended to commit the charged crime, not only the predicate offense," but did not ask the jury to find that defendants "consciously shared the knowledge of the principal." and both defendants were found guilty.

The Second Circuit reviewed the appeal of count 21 under the "plain error standard" and concluded that the instructions were erroneous in light of the Supreme Court's 2014 decision in Rosemond v. United States. In Rosemond, the Supreme Court concluded, that "[w]hat matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme." There, the Supreme Court explained that the jury in that case had been improperly charged because the instructions did not explain that the defendant "needed advance knowledge of a firearm's presence."

The Second Circuit noted that, subsequent to Rosemond, both the Sixth and Tenth Circuits have considered whether general umbrella aiding and abetting instructions are plainly erroneous and reached different conclusions. The Sixth Circuit found instructions that did not require only that the defendant have advance knowledge that a firearm would be used but only intent to further the predicate crime, not the use if the gun. The Tenth Circuit, however, found instructions that required the government to prove the defendant "consciously shared the other person's knowledge of the underlying criminal act and intended to help him or her" were not clearly erroneous. Finding that the instructions given in this case "fall somewhere between those rejected by the Sixth Circuit and those accepted by the Tenth Circuit," the Second Circuit held that the jury instructions given to Martinez and Ortega were plainly erroneous because they failed to require the jury to find the "defendants had advance knowledge of the gun at a time that they could have chosen not to participate in the crime."

The Second Circuit next addressed whether the error affected Martinez's and Ortega's substantial rights. The Second Circuit found that there was no direct evidence that Ortega knew, upon leaving to pick up Quijada, that someone had brought a gun, very little evidence of advanced knowledge of the gun, and a reasonable probability of a different trial outcome had the jury been properly instructed. In contrast, the court concluded there was direct evidence of Martinez's participation in the murder because Amaya handed the jammed gun to Martinez and Martinez handed the machete to Amaya and, accordingly, the Second Circuit could not say that there was a reasonable probability of a different outcome at trial for Martinez had the jury been properly instructed.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...183b70cdb87/1/hilite/

Panel: Circuit Judges Calabresi, Pooler, and Lynch

Argument Date: 12/9/2015

Date of Issued Opinion: 2/24/2016

Docket Number: No. 13-2894-cr (L)

Decided: Affirmed, Vacated and Remanded

Case Alert Author: Daniel Plaia

Counsel: Robert A. Soloway, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Defendant-Appellant Mario Alphonso Herrera-Umanzor, John Frederick Carman, Garden City, for Defendant-Appellant Vidal Espinal, Randall D. Unger, Bayside, NY (Elizabeth E. Macedonio, New York, NY, on the brief), for Defendant-Appellant Heriberto Martinez, Elizabeth Johnson (Ira D. Johnson and Avrom Robin on the brief), Law Offices of London & Robin, New York, NY, for Defendant-Appellant Carlos Ortega, John J. Durham, Assistant United States Attorney (Carrie N. Capwell, Peter A. Norling, and Raymond A. Tierney, Assistant United States Attorneys, on the brief), for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Author of Opinion: Judge Pooler

Circuit: 2nd Circuit

Case Alert Circuit Supervisor:
Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 02/25/2016 08:18 AM     2nd Circuit  

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