United States v. Rosario-Diaz - 202 F.3d 54 (1st Cir. 2000)

Rule:

To support a conviction for aiding and abetting, the government must prove, in addition to the commission of the offense by the principal, that the defendant consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal. The defendant's knowledge must be more than merely a general suspicion that an unlawful act may occur. However, the First Circuit recognizes the difficulty of precisely articulating the degree of knowledge required to support a conviction for aiding and abetting particular offenses.

Facts:

On June 9, 1995, defendants Ralph Rosario-Diaz and Wilson Montalvo-Ortiz placed a telephone call to later state witness Gregorio Aponte-Lazu. Rosario-Diaz informed Aponte-Lazu that Aponte-Lazu's brother-in-law, Fonsi, a runner in Rosario-Diaz's drug ring, had been killed the preceding day. Rosario-Diaz told Aponte-Lazu that among Fonsi's belongings had been found a list of persons who they believed to have Fonsi's drug money, including Edna Rivera-Hernandez. Rosario-Diaz told Aponte-Lazu that he had a job for him--to find Edna and retrieve the $ 200,000 she was thought to have. In exchange, Aponte-Lazu would receive $ 25,000. If Edna should refuse to return the money, Aponte-Lazu was to kill her and make it look like a robbery. To facilitate the crime, Rosario-Diaz provided Aponte-Lazu with several pieces of information about Edna. On June 13, 1995, Rosario-Diaz pointed Edna out to Aponte-Lazu at the ACC. At that point, Montalvo-Ortiz instructed Aponte-Lazu not to rape Edna, but stated that he should kill her if necessary. On June 20, 1995, Aponte-Lazu met in the plaza with defendant  Ada Melendez-Garcia and her son. Aponte-Lazu then went to the ACC, where Rosario-Diaz informed him that Edna would be at a doctor's appointment that day, rather than at the college. The five of them—Aponte-Lazu, Melendez-Garcia, her son Victor, Baez-Jurado, and Lopez-Morales—then walked the streets near the plaza. They saw Edna, who got out of her car and entered a pediatrician's office with her four-month-old baby. Aponte-Lazu and the others went to a nearby supermarket and purchased a knife. Eventually, Edna exited the doctor's office and moved towards her car, pushing her baby in a stroller. Aponte-Lazu, Melendez-Garcia, and Victor approached the car at the same time as Edna, complimenting and inquiring about her baby. When Edna had placed her car key in the car door, Aponte-Lazu put the knife to her ribs. Baez-Jurado and Lopez-Morales appeared, and Edna was forced into the back seat with them and Victor. Aponte-Lazu asked Edna for the $ 200,000, but she responded that she did not have it and that she had returned it to Fonsi before he was killed. Near the Guayanez River, the car became stuck in a sugar cane bank, and Aponte-Lazu, Baez-Jurado, Lopez-Morales, and Edna exited the car. While Melendez-Garcia sat in the car with Edna's baby, the rest of the group went to a secluded area surrounded by bamboo trees. While Edna protested that she had returned all the money, she was asked intimate questions by Aponte-Lazu while Baez-Jurado wielded the knife. Aponte-Lazu, Baez-Jurado, and Lopez-Morales then each raped Edna and even placed young Victor on top of her naked body in a grotesque simulation of their acts. While threatening to kill her baby, Aponte-Lazu, Baez-Jurado, and Lopez-Morales beat Edna with their fists and with a bamboo stick. Aponte-Lazu then ordered Lopez-Morales to drag Edna to the river, presumably to drown her. When Edna resisted, Aponte-Lazu told Baez-Jurado to help. Baez-Jurado entered the river and slit Edna's throat. They left her body in the river, where it was found decapitated on July 7, 1995. After killing Edna, Aponte-Lazu and appellants managed to extract the car from the sugar cane bank and fled the area. Aponte-Lazu telephoned Rosario-Diaz and informed him that Edna was dead but that they still had her car and her baby. Rosario-Diaz instructed them to leave the car and baby at a safe place. After driving around, they abandoned the baby in front of a residence in Luquillo. That same evening, Edna's husband and his brother began to search for Edna. On the highway, they spotted her car, driven by Aponte-Lazu, and gave chase. Edna's husband was able to turn off the ignition of Edna's car using a spare remote control for the car's alarm system. When Edna's car stopped, Aponte-Lazu ran away but was apprehended by the husband and his brother. Edna's ring and bracelet were found on Aponte-Lazu's person. When the police arrived, the knife and a photo of Aponte-Lazu were found in Edna's car. On May 6, 1996, a grand jury returned a two-count indictment charging Aponte-Lazu, Melendez-Garcia, Baez-Jurado, Lopez-Morales, Rosario-Diaz, and Montalvo-Ortiz with (1) aiding and abetting each other in the commission of a carjacking in violation of 18 U.S.C. §§ 2 & 2119(3), and (2) conspiracy to commit that carjacking, in violation of 18 U.S.C. § 371. All defendants initially pled not guilty, although Aponte-Lazu subsequently changed his plea and agreed to cooperate with the United States. On December 12, 1997, a jury found each defendant guilty on both counts of the indictment.

Issue:

May Rosario-Diaz and Montalvo-Ortiz be said to have aided and abetted the carjacking of Edna’s vehicle?

Answer:

No.

Conclusion:

When viewed in the light most favorable to the prosecution (as indeed all evidence for these purposes must be viewed), the evidence pointed to by the United States might fairly be deemed to raise a possibility that Aponte-Lazu would commit a carjacking. However, viewed in any light, there was no evidence to raise such a possibility to the level of a probability or a likelihood. Based on the instructions and information that Rosario-Diaz and Montalvo-Ortiz provided to Aponte-Lazu, any of several scenarios were within the realm of possible means of confronting Edna and attempting to retrieve the $ 200,000—burglary, confronting her near her home, confronting her on the street, confronting her at her car without attempting to "take" the vehicle, confronting her in connection with a carjacking, et cetera. It was noteworthy that, in addition to information about Edna's car, Rosario-Diaz gave Aponte-Lazu her home address as well as the location of her school. In other words, Aponte-Lazu was given information by which he might locate Edna at any time during the morning, day, or night, at any of the places that she could be foreseen to be--at home, at school, or elsewhere with her car. Significantly, the jury was not presented with a single discussion or instruction in which Rosario-Diaz or Montalvo-Ortiz mentioned or even alluded to a carjacking. In sum, there was no evidence whatsoever in the record that could reasonably be considered by the jury to make carjacking more likely than any of the other possible ways in which Aponte-Lazu could have carried out Rosario-Diaz and Montalvo-Ortiz's instructions. Where the offense actually committed by the principal is merely one of many (in this case, practically innumerable) possibilities, we see no difference between such "knowledge" and a "general suspicion" that a criminal act is underway or contemplated.