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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11119
________________________
D.C. Docket Nos. 9:11-cr-80078-DMM-2,
9:11-cr-80078-DMM-1
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
versus
WINSKY MONDESTIN,
KERBY AURELHOMME,
Defendants/Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 28, 2013)
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Before TJOFLAT and WILSON, Circuit Judges, and COOGLER, * District Judge.
PER CURIAM:
Winsky Mondestin and Kerby Aurelhomme each appeal their convictions
and total 300-month sentences following a joint trial. Both defendants were
convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §
1951 (Count One); Hobbs Act robbery (Count Two); using, carrying, brandishing,
or discharging a firearm in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count Three); and making false statements of material fact to
investigators, in violation of 18 U.S.C. § 1001(a)(2) (Counts Four through Six).
For the reasons that follow, we reverse the convictions with regard to Count Three.
We find the challenges to the remaining counts without merit and therefore do not
address them in this opinion.
I. BACKGROUND
Co-defendants Mondestin and Aurelhomme were indicted on a six-count
superseding indictment alleging they were responsible for a July 12, 2006 robbery
of an armored van in Boca Raton, Florida. Aurelhomme was employed by the
armored van company and was the assigned driver of the van on the morning of the
robbery. Gustavo Sorzano was the other guard on duty at the time.
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
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On the morning of the robbery, Aurelhomme and Sorzano received a
manifest that listed several automatic teller machines (“ATMs”) they were
responsible for servicing that day. After they headed out, Sorzano reversed the
order of their stops due to traffic, and he instructed Aurelhomme to begin with the
ATM at the Cumberland Farms convenience store and gas station. The two arrived
at Cumberland Farms shortly after nine o’clock that morning. Upon their arrival,
Sorzano went inside the store to service the ATM while Aurelhomme waited in the
van.
Sorzano spent approximately thirty minutes servicing the ATM inside
Cumberland Farms. As he was leaving the store, an armed assailant attacked
Sorzano and threw him into the back of the van. Sorzano yelled for Aurelhomme to
cut off the engine and call the police, but instead Aurelhomme remained silent and
began driving.1 Sorzano and the assailant struggled in the back of the van as it was
driving away. During the struggle the assailant’s gun discharged, striking Sorzano
in the ankle. A few minutes later, the van stopped at a nearby apartment complex
and the assailant began unloading the bags of money. Sorzano could not see
anyone outside the van helping unload the money, but he was aware of another car.
Sorzano later testified that he believed the attacker had a partner considering how
1
Aurelhomme later explained his behavior by claiming a second robber was holding him
at gunpoint in the front seat.
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quickly he unloaded the twenty bags of money into the getaway car and drove
away. Once the assailant and the car were gone, Sorzano called 911. Sorzano was
then taken to the hospital, where he was informed by doctors that he had suffered a
heart attack as a result of the attack.
Investigators began suspecting Aurelhomme’s involvement in the robbery
based on his unusual behavior and suspicious responses in a post-robbery
interview. For example, Aurelhomme initially told investigators that the robbers
had taken his cell phone. However, when investigators requested the phone’s
number so they could track it, Aurelhomme claimed he could not remember the
number as he had just obtained the phone the previous evening at a night club.
Aurelhomme initially could not provide names of people who he had called or who
might know his number, and the numbers he eventually provided were inoperable.
Aurelhomme’s phone number was later established through various means,
including a statement and phone records from Elier Cruz, Aurelhomme’s
employer, who told investigators that Aurelhomme had called him from his usual
phone number when he arrived at work on the morning of the robbery.
Mondestin was implicated in the crime through cell phone records, which
showed twenty-three phone calls between Aurelhomme and Mondestin on the
morning of the robbery, nine of which were made while Sorzano was servicing the
ATM. Additionally, cell tower analysis showed that Mondestin and Aurelhomme’s
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phones were using the same cellular tower and the same sector at various time
intervals during and preceding the robbery. Like Aurelhomme, Mondestin acted
suspiciously when questioned by authorities. For example, Mondestin denied
ownership of the phone number investigators had linked to him, claiming instead
that it belonged to “Johnny.” Yet, upon further inquiry, Mondestin was unable to
provide any information to establish “Johnny’s” identity. Further, Mondestin
initially claimed another phone number belonged to him, but later backtracked and
told investigators the phone had been dropped in water and was no longer
operable. Although investigators determined that Mondestin was a co-conspirator
in the robbery, they did not believe he was the armed assailant that attacked and
shot Sorzano. Instead, investigators were led to believe that James Theoc,
Mondestin’s older brother, was the armed assailant. Theoc died of natural causes
before this case went to trial.
At the conclusion of the trial, but before closing arguments, the court
conferred with counsel regarding jury instructions. With respect to Count Three—
which charged the defendants with using a firearm in relation to a crime of
violence—the government sought to establish accomplice liability since neither
defendant individually carried a weapon. Two theories were discussed: (1) an
aiding and abetting theory, requiring the government prove the defendant knew
that a firearm was being used by a co-conspirator and that the defendant committed
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some act in furtherance of the offense; 2 and (2) a Pinkerton 3 theory of liability,
which requires only that the use of the firearm was reasonably foreseeable. The
government requested an instruction under both theories, but the district court
denied the request for a Pinkerton instruction. The parties then argued their
theories of the case to the jury with the understanding that the jury would be
instructed only on aiding and abetting.
After closing arguments, the district court instructed the jury on the indicted
crimes, including the 18 U.S.C. § 924(c)(1)(A) charge in Count Three. Then,
consistent with its representation to the parties, the court instructed the jury as
follows:
It is possible to prove a defendant guilty of a crime even
without evidence that the defendant personally performed every act
charged. . . . .
[A] defendant aids and abets a person if the defendant
intentionally joins with the person to commit a crime.
A defendant is criminally responsible for the acts of another
person if the defendant aids and abets the other person.
....
But finding the defendant is criminally responsible for the acts
of another person requires proof that the defendant intentionally
associated with or participated in the crime, not just proof that the
2
To prove aiding and abetting a § 924(c) offense, the government must show that the
substantive offense of carrying or using a firearm in relation to a crime of violence was
committed, “that the defendant associated himself with the criminal venture, and that he
committed some act which furthered the crime.” United States v. Hamblin, 911 F.2d 551, 557
(11th Cir. 1990). Additionally, the government must present evidence proving that defendant had
the “knowledge required to convict him under section 924(c).” Id. at 558. See also United States
v. Thomas, 987 F.2d 697, 702 (11th Cir. 1993).
3
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct 1180 (1946).
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defendant was simply present at the scene of the crime or knew about
it.
During deliberations, the jurors sent a note to the court with three questions
regarding the legal standard applicable to Count Three’s firearm charge:
Question 1: Does Count 3 mean the defendants themselves have to
possess the firearm to be found guilty of the charge?
Question 2: If the defendants were aware that the firearm was to be
used in the crime, they are guilty of Count 3?
Question 3: Does it even matter if the defendants had knowledge of a
firearm to be used?
The district court sought input from the parties on how to respond. Counsel for the
government suggested the court refer the jurors back to the previous instruction on
aiding and abetting, “especially in light [of] the fact that the Pinkerton charge was
not given.” The attorneys for both defendants similarly suggested the court simply
refer the jury to the original instruction.
Instead of following the recommendations from counsel, the district court
formulated the following response:
1. A person does not have to personally possess the firearm to be
guilty of Count Three.
2. A person can be found guilty of Count Three if that person aids
and abets a person who uses the firearm.
3. A co-conspirator can be found guilty of Count Three if it is
reasonably foreseeable that another conspirator would use the
gun in connection with the crime.
Both defendants objected to the proposed supplemental instruction, again insisting
the court simply refer to its previous charge. The court, however, overruled their
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objections and sent a note to the jury with the supplemental instruction as
described to the parties.
After deliberating for approximately four more hours, the jury returned a
verdict finding both Aurelhomme and Mondestin guilty of all counts for which
they were charged.
II. DISCUSSION
In this consolidated appeal, Aurelhomme and Mondestin have challenged,
on various grounds, all five counts for which they were convicted. After
thoroughly weighing each argument presented, we are only persuaded by the
defendants’ arguments with respect to their convictions under Count Three. The
convictions on all other counts are due to be affirmed.
Defendants argue that their convictions under § 924(c)(1)(A) are due to be
reversed because the district court abused its discretion when it responded to the
jury’s question with language describing a Pinkerton theory of liability, especially
in light of the fact that the court previously declined to give a Pinkerton instruction
in its initial charge to the jury. We review a district court’s response to a jury
question for an abuse of discretion. United States v. Lopez, 590 F.3d 1238, 1247
(11th Cir. 2009). It may be appropriate in some circumstances for a district court to
expand upon an initial instruction when a jury question arises. See Bollenbach v.
United States, 326 U.S. 607, 612–13, 66 S. Ct 402, 405 (1946) (“When a jury
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makes explicit its difficulties a trial judge should clear them away with concrete
accuracy.”). But while the district court enjoys “considerable discretion regarding
the extent and character of supplemental jury instructions, it does not have
discretion to misstate the law or confuse the jury.” Lopez, 590 F.3d at 1247–48
(citing United States v. Sanfilippo, 581 F.2d 1152, 1154 (5th Cir. 1978) (per
curiam)). Further, the court may not change the original instruction in a manner
that prejudices the defendant. Lopez, 590 F.3d at 1252–53. “Such prejudice occurs
when the change in the instructions is substantial, when the instructions repudiate
counsel’s arguments, or when the instructions impair the effectiveness of those
arguments.” Id. at 1253 (quoting United States v. Descent, 292 F.3d 703, 707 (11th
Cir. 2002) (per curiam)).
In Lopez, this Court was confronted with a defendant who was charged with
conspiring to encourage or induce an alien to unlawfully enter the United States in
violation of 8 U.S.C. § 1324(a)(1)(A)(iv). Id. at 1243. During the charge
conference, the government asked the district court to provide the jury with
dictionary definitions for two terms— “encourage” and “induce”—which were
otherwise undefined in the statute. Id. at 1246. The defendant objected and the
district court declined the requested instruction, instead allowing the parties to
argue their positions on the common meanings of the terms during closing
arguments. Id. However, the jurors subsequently sent a note to the court asking
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whether certain verbal or nonverbal communication was necessary for the
defendant’s conduct to be deemed encouragement. Id. In response, the district
court, over the defendant’s objection, provided the dictionary definitions it had
previously declined to give. Id. at 1247. The jury ultimately returned a verdict
finding the defendant guilty. Id.
On appeal, the defendant argued that the district court’s supplemental
instruction violated Federal Rule of Criminal Procedure 30 because the court
reversed its earlier decision not to define the statutory terms. 4 Lopez, 590 F.3d at
1252–53. This Court rejected the defendant’s argument, holding instead that the
district court’s decision not to initially define the terms did not preclude it from
expanding upon its instructions in response to the jury’s question. Id. at 1253.
Moreover, we concluded that there was no prejudice to the defendant because it
was clear he would have made an identical argument to the jury regardless of
whether the terms were defined in the initial instruction. Id. at 1253–54.
This case presents a markedly different situation from Lopez as there is
prejudice to Mondestin and Aurelhomme resulting from the supplemental
instruction. A defendant may be prejudiced by a supplemental instruction when the
instruction substantially changes the initial jury charge. See Descent, 292 F.3d at
4
Federal Rule of Criminal Procedure 30 requires a district court, when requested, to
inform counsel of its proposed action upon requested jury instructions prior to closing
arguments. Fed. R. Crim. P. 30.
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707 (stating that prejudice may be found “when the change in the instructions is
substantial”). The district court’s supplemental instruction in Lopez did not present
such a “substantial” change, but rather, simply clarified the meaning of a term for
which the court had previously left undefined. In contrast, here the district court’s
response provided an entirely new theory under which the jury could find the
defendants guilty of the offense charged. Even more, the Pinkerton “reasonably
foreseeable” test described in the supplemental instruction established a
significantly lower standard for culpability than the knowledge-based “aiding and
abetting” theory upon which the jury was first instructed.
There are several problems that arise when a court fundamentally changes
the jury instruction in response to a question raised during deliberations. For one, it
has the potential to confuse the jurors, leaving them uncertain of which standard to
apply. Furthermore, such a change in the instruction deprives the defendants of the
opportunity to argue their case to the jury, especially with regard to the added
theory of liability.
The government contends that there was no prejudice here because the
defendants would have argued their case the same way even if they had known the
district court intended to give a Pinkerton instruction. In support of this argument,
the government points to Aurelhomme’s trial strategy of arguing his complete
innocence of any involvement in the robbery. We cannot accept this reasoning as
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this Court is not in a position to speculate about what arguments the defendants
would or would not have made if they were confronted with a substantially
different jury instruction. Criminal defendants regularly appeal to the jury in the
form of alternative arguments, and there is no reason to believe the defendants in
this case would not have done the same. For example, Aurelhomme could well
have maintained his innocence, but also argued in the alternative that even if the
jury disbelieves him they should nonetheless find that it was not reasonably
foreseeable that the other robber would carry a gun. Indeed, the defendants have
made a similar argument in this appeal, contending that there was insufficient
evidence at trial to support a § 924(c)(1)(A) conviction based upon a Pinkerton
theory of liability.
This Court cannot declare with certainty what the defendants would have
argued to the jury if they had known the Pinkerton charge was going to be
provided, nor can we predict how the jury would have responded to such an
argument. Nonetheless, the defendants should have been given the opportunity to
argue their case with knowledge of which theory the district court was going to
include in its instructions to the jury. Because they were not given such an
opportunity, the defendants’ Count Three convictions must be reversed.5
5
We acknowledge the Supreme Court’s recent decision in Alleyne v. United States,
__U.S. __, 133 S. Ct. 2151 (2013), and its potential application to the jury instruction with
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III. CONCLUSION
The defendants’ convictions under Count Three for using, carrying,
brandishing, or discharging a firearm in relation to a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A) are reversed. The convictions under all other counts
are affirmed; however, the defendants’ sentences are vacated pending the
resolution of Count Three. This matter is remanded to the district court for further
proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
respect to the § 924(c) charge. However, because we reverse Count Three on other grounds, we
do not address Alleyne in this opinion.
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