United States v. Figueroa-Cartagena

United States Court of Appeals
For the First Circuit

No. 08-2110

UNITED STATES OF AMERICA,

Appellee,

v.

NELIZA FIGUEROA-CARTAGENA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Baldock,* and Lipez, Circuit Judges.

Rafael F. Castro-Lang, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief
for appellee.

July 16, 2010

*
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellant Neliza Figueroa-

Cartagena ("Neliza") was found guilty of aiding and abetting a

carjacking that resulted in death, 18 U.S.C. § 2119(3); conspiring

to commit that carjacking, 18 U.S.C. §§ 371; and aiding and

abetting the carriage or use of a firearm during the carjacking, 18

U.S.C. § 924(c)(1)(A)(ii). She and two co-defendants, Félix

Gabriel Castro-Davis ("Gabriel") and Félix Alberto Castro-Davis

("Alberto"), appealed their convictions on a number of grounds,

including sufficiency of the evidence. In a separate opinion, we

affirmed the convictions of Alberto and Gabriel. See United States

v. Castro-Davis, Nos. 08-2108, 08-2109. In this opinion, we affirm

Neliza's carjacking and conspiracy convictions and reverse her

firearm conviction.1

I.

The underlying facts are set forth in detail in the

companion opinion, United States v. Castro-Davis, Nos. 08-2108, 08-

2109. As we explained there, the jury could have found from the

evidence presented at trial that Gabriel and Alberto carjacked

Héctor Pérez-Torres on the afternoon of July 15, 2006 in Caguas,

Puerto Rico. There was no evidence presented regarding what

1
Judge Torruella dissents from the affirmance of the
carjacking and conspiracy convictions. Also, in a section of this
opinion not joined by Judge Baldock (Part II.C), I explain my
reservations about the precedents that require, in my view,
affirming the carjacking conviction, and urge en banc review to re-
examine them.

-2-
happened in the immediate aftermath of the carjacking. Later that

evening, Gabriel and Alberto arrived at Neliza's parents' house in

Cayey with Pérez handcuffed inside his own car. Gabriel had been

living at the house with Neliza, whom he was dating at the time.

Although Neliza did not arrive with Gabriel and Alberto, she placed

a phone call at that time to her brother José, who was inside the

house, and asked him to step outside to speak with Gabriel. When

José went outside, Gabriel offered him money to guard Pérez for a

while. José agreed, and Gabriel and Alberto left to withdraw money

using Pérez's ATM card.

While watching Pérez, José grew nervous and called

Gabriel to urge him to hurry. Neliza answered the phone and

assured him they were nearby.2 Just after the conversation ended,

however, Pérez jumped from the car and attempted to escape. José

unsuccessfully tried to force him back into the car, and a struggle

ensued until Gabriel, Alberto, and Neliza arrived and subdued

Pérez. In the meantime, several neighbors approached the house to

inquire about the noise. Neliza told them not to get involved, and

she and Gabriel closed a gate to prevent them from approaching.

José went to a gas station after the fight to wash his

car and drink a beer. Gabriel, Alberto, and Neliza followed to

check on him. Neliza was driving her own car, Gabriel was driving

2
It is unclear whether Neliza answered Gabriel's phone or
whether José accidentally called his sister's phone.

-3-
Pérez's car, and Alberto was sitting in Pérez's car holding Pérez

in a headlock. The three spoke briefly with José and then drove

off in the same direction.

The next day, Neliza and Gabriel met José at the house.

Gabriel explained that he and Alberto had killed Pérez the night

before by asphyxiating him with duct tape.3 Gabriel and Neliza

instructed José to threaten the neighbors and tell them to remain

silent about the previous day's events.

The following year, Gabriel, Alberto, and Neliza were

charged with aiding and abetting a carjacking that resulted in

death, 18 U.S.C. § 2119(3); conspiring to commit that carjacking,

18 U.S.C. §§ 371; and aiding and abetting the use of a firearm

during the carjacking, 18 U.S.C. § 924(c)(1)(A)(ii). After a four-

day trial, the jury returned a verdict of guilty on all counts.

The district court sentenced Neliza to a total term of imprisonment

of 262 months and sentenced Gabriel and Alberto to life

imprisonment. This appeal followed.

II.

On appeal, Neliza challenges the sufficiency of the

evidence supporting her convictions and claims that the district

court made a number of evidentiary and procedural errors that

3
The government has not alleged that Neliza was directly
involved in the killing of Pérez.

-4-
entitle her to a new trial. We address each of her arguments in

turn, beginning with the sufficiency of the evidence.

We review de novo the district court's denial of Neliza's

motion for judgment of acquittal. United States v. Thompson, 449

F.3d 267, 275 (1st Cir. 2006). Our inquiry is whether, taking the

evidence in the light most favorable to the verdict, a reasonable

factfinder could have found her guilty beyond a reasonable doubt.

Id.

A. Carjacking

Neliza's challenge to her carjacking conviction focuses

on what we have called the "temporal limits" of the crime.

Ramírez-Burgos v. United States, 313 F.3d 23, 30 n.9 (1st Cir.

2002). She claims that her involvement, if any, with Alberto and

Gabriel's criminal scheme began long after those two had seized

Pérez's car. In her view, there was no basis for the jury to

conclude that she aided and abetted the carjacking because it is

not possible to aid and abet a crime that has already been

committed.4

The basic legal premise of her argument -- that she

cannot be convicted of aiding and abetting a completed crime -- is

sound. At common law, participants in a felony were divided into

4
Neliza also suggests in passing that she did not have the
requisite intent to commit the carjacking. She has not made any
attempt to develop that argument, however, and we therefore deem it
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-5-
four categories according to the nature and timing of their

participation: "(1) first-degree principals, those who actually

committed the crime in question; (2) second-degree principals,

aiders and abettors present at the scene of the crime;

(3) accessories before the fact, aiders and abettors who helped the

principal before the basic criminal event took place; and

(4) accessories after the fact, persons who helped the principal

after the basic criminal event took place." Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 189 (2007). The enactment of the

federal aiding and abetting statute in 1909 eliminated the

distinctions among the first three categories. The statute now

provides that any such participant "is punishable as a principal."

18 U.S.C. § 2(a); Standefer v. United States, 447 U.S. 10, 19

(1980). However, Congress chose to retain the fourth category --

accessory after the fact -- as a separate class whose "offense is

distinct and is differently punished." Bollenbach v. United

States, 326 U.S. 607, 611 (1946). Accessories after the fact may

generally be imprisoned "not more than one-half the maximum term of

imprisonment . . . prescribed for the punishment of the principal."

18 U.S.C. § 3.

The temporal boundary between principals and aiders and

abettors, on the one hand, and accessories after the fact, on the

other hand, thus remains important in federal criminal law. On

each side of that boundary lies a separate offense with separate

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elements and a separate punishment. United States v. Avants, 367

F.3d 433, 450 (5th Cir. 2004). One consequence of that enduring

distinction is that "a person cannot be found guilty of aiding and

abetting a crime that already has been committed." United States

v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003); SEC v. Papa, 555

F.3d 31, 36 (1st Cir. 2009).

This point has important implications for Neliza's

liability. To fully understand those implications, we must draw a

careful distinction between the "offense" of carjacking and the

offense conduct. Like many crimes, carjacking is composed of

several different types of elements: the offense conduct (the

taking of a motor vehicle from the person or presence of another by

force and violence or by intimidation), a mental state (the intent

to cause death or serious bodily harm), an attendant circumstance

(the transportation of the vehicle in interstate or foreign

commerce), and, for aggravated carjacking, a consequence (serious

bodily injury or death).5 For purposes of aiding and abetting

liability, it is the duration of the offense conduct that matters,

since the aiding and abetting statute "states a rule of criminal

responsibility for acts which one assists another in performing."

Nye & Nissen v. United States, 336 U.S. 613, 620 (1949) (emphasis

5
See 1 Wayne R. LaFave, Substantive Criminal Law § 6.1 (2d
ed. 2003) (distinguishing between "acts," "surrounding
circumstances," and "consequences"); Model Penal Code § 1.13(9)
(2001) (dividing "element[s] of an offense" into three categories:
"conduct," "attendant circumstances," and "result[s] of conduct").

-7-
added); see also United States v. Morales-Cartagena, 987 F.2d 849,

853 (1st Cir. 1993) ("[A]iding and abetting is a form of agency in

which the law holds a defendant criminally responsible for the acts

and conduct of another person even though the defendant may not

have personally committed every act constituting the offense

alleged.").6 In Neliza's case, if there is no evidence that she

aided Gabriel and Alberto in their performance of the offense

conduct (either before the fact or during the fact), her conviction

cannot stand. Cf. United States v. Delpit, 94 F.3d 1134, 1150-51

(8th Cir. 1996).

The factual premise of Neliza's argument -- that she did

not become involved until after Gabriel and Alberto seized the

car -- is also sound. The first sign of Neliza's involvement in

the criminal episode was a phone call she made to her brother José

on the evening of July 15, 2006, asking him to step outside the

6
Although the current aiding and abetting statute obscures
this point by speaking in terms of aiding the commission of an
"offense," the focus on offense conduct was explicit in the former
version of the statute, which provided: "Whoever directly commits
any act constituting an offense defined in any law of the United
States, or aids, abets, counsels, commands, induces, or procures
its commission, is a principal." 18 U.S.C. § 550 (1940) (emphasis
added). The current language was substituted as part of the 1948
re-codification of Title 18. It is apparent from the Revision
Notes that the change was intended to be stylistic only. See 18
U.S.C. § 2, Revision Notes ("Section 2(a) comprises § 550 of Title
18, U.S.C., 1940 ed., without change except in minor matters of
phraseology.").

-8-
house to speak with Gabriel.7 But the seizure of the vehicle

occurred several hours earlier, in the mid- to late-afternoon.

There was no evidence suggesting what Neliza might have been doing

at the time of the seizure or when she became entangled in the

carjacking scheme. The government attempted to fill this gap at

trial by arguing that "somebody" must have driven Alberto and

Gabriel from Cayey to the scene of the carjacking in Caguas: "They

didn't walk from Cayey to Salchichón in Caguas. Somebody took them

there, and that someone is Neliza Figueroa-Cartagena."8 But the

government presented no evidence to support that theory. Needless

to say, Alberto and Gabriel could have arrived in Caguas in any

number of ways, and they may have sought Neliza's aid after they

seized the car. The government's theory is pure conjecture, which

cannot form the basis for a criminal conviction.9 United States v.

Spinney, 65 F.3d 231, 234 (1st Cir. 1995).

7
The precise time is a matter of dispute. José testified
that it was "getting dark" when Neliza called, which he estimated
was around 6:00 p.m. It was later pointed out that the sun sets
significantly later than 6:00 p.m. during the summer in Puerto
Rico. The exact time is not critical for present purposes.
8
As we explain more fully in Part II.B, infra, this was
not the government's only factual argument about Neliza's
involvement.
9
Indeed, the government has made little effort to defend
this theory on appeal, choosing instead to obscure the distinctions
among the defendants by referring to them generically as
"appellants."

-9-
 It would seem to follow that Neliza's conviction cannot

stand because there is insufficient evidence that she participated

in the carjacking offense conduct. But that conclusion rests on a

third, unstated assumption: that the offense conduct for carjacking

begins and ends when the vehicle is first seized. In our circuit,

at least, that is not the law. We have held that when a carjacking

victim is taken hostage, "the commission of [the] carjacking

continues at least while the carjacker maintains control over the

victim and [his or] her car." Ramírez-Burgos, 313 F.3d at 30 n.9;

accord United States v. Lebrón-Cepeda, 324 F.3d 52, 61 (1st Cir.

2003) (per curiam); United States v. Matos-Quiñones, 456 F.3d 14,

19 n.4 (1st Cir. 2006) (dictum); United States v.

Martinez-Bermudez, 387 F.3d 98, 101 (1st Cir. 2004) (dictum).

That gloss on the carjacking statute casts Neliza's

argument in a different light. As we have said, an individual who

arrives on the scene after the offense conduct has ended cannot be

held liable as an aider and abettor. But when the criminal conduct

extends over a period of time, a latecomer "may be convicted of

aiding and abetting even if [she] did not learn of the crime at its

inception but knowingly assisted at a later stage." United States

v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006).

Neliza's participation fits within the latter category.

Under our precedent, the carjacking offense conduct remained

ongoing while Pérez was a hostage in the car for many hours after

-10-
Neliza became involved. During that time, Neliza lent significant

aid to Alberto and Gabriel: she allowed them to hold Pérez at her

parents' house, she helped recruit her brother as a guard, and she

warded off curious neighbors. She was not "merely present" at the

scene of the crime; her aid was essential to the success of the

scheme, and she may therefore be held liable as an aider and

abettor. United States v. Peña-Lora, 225 F.3d 17, 28-29 (1st Cir.

2000) (affirming conviction where defendant aided and abetted

hostage-taking by bringing meals to the hostage and letting him out

to use the restroom); see also 2 Wayne R. LaFave, Substantive

Criminal Law § 13.2 (2d ed. 2003) (noting that an aider and abettor

may "facilitate the crime by getting . . . [a] possible witness

away from the scene").

B. The Dissent

The dissent argues that it is a due process violation to

affirm Neliza's conviction based on her conduct at the Figueroa

house. We respectfully disagree. It is true that "we cannot

affirm a criminal conviction on the basis of a theory not presented

to the jury . . . ." Chiarella v. United States, 445 U.S. 222, 236

(1980). But that is not a problem here because the jury was

specifically invited to consider Neliza's conduct at the house.

The government argued in closing that Neliza should be convicted as

an aider and abettor of the carjacking offense based in part on

that conduct, including her phone call to José and her intervention

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with the neighbors. Neliza's counsel directly engaged the

government's argument in her own closing argument, questioning

whether José's account of Neliza's involvement at the house was

reliable. Thus, the whole range of Neliza's conduct was put before

the jury. It is of no moment that the government's case rested in

part on an unsupported factual assertion (i.e., that Neliza drove

Alberto and Gabriel to the site where they first seized Pérez's

vehicle). As the dissent acknowledges, we cannot overturn the

verdict because it might have been based on a factually unsupported

theory. See Santellan v. Cockrell, 271 F.3d 190, 196 (5th Cir.

2001) ("The Supreme Court has ruled that where a jury is given the

option of choosing between factually adequate and factually

inadequate theories of guilt, jurors 'are well equipped to analyze

the evidence' and can be counted upon to base their verdict upon

the factually adequate theory." (quoting Griffin v. United States,

502 U.S. 46, 59 (1991)).

Importantly, neither the indictment nor the jury

instructions limited this broad focus on the entirety of Neliza's

conduct. The indictment was framed in general terms that tracked

the language of the carjacking statute, and the jury instruction on

carjacking repeated that same language. See 18 U.S.C. § 2119

("Whoever, with the intent to cause death or serious bodily harm

takes a motor vehicle that has been transported, shipped, or

received in interstate or foreign commerce from the person or

-12-
presence of another by force and violence or by

intimidation . . . ."). The instruction on aiding and abetting, in

turn, was broadly worded and suggested that the entire course of

Neliza's conduct could be considered. For example, the jury was

instructed that "[a] particular defendant, to be responsible under

aiding and abetting, need not perform the underlying criminal act,

be present when it was performed, or be aware of all the details of

the execution to be guilty of aiding and abetting." The government

emphasized that point in its closing argument by listing all of

Neliza's conduct and asserting: "Ladies and Gentlemen, that is

called aiding and abetting. She didn't have to put the tape around

[Pérez's] face. She helped them. She aided and abetted them. She

knew what they were doing. She was standing to benefit from it,

and she is just as responsible under the law as they are."

Under the circumstances, even in the absence of an

explicit jury instruction that the offense conduct of the

carjacking charge continued while Pérez was held hostage in the

car, the jury was presented with the theory that Neliza could be

convicted of carjacking based on her conduct at the house. Neliza

had ample opportunity to rebut the factual and legal basis for that

theory. Ultimately, however, the jury chose to believe the

government's version of the facts. Affirming on that basis

therefore does not infringe Neliza's "right to be heard on the

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specific charges of which [s]he is accused." Dunn v. United

States, 442 U.S. 100, 106 (1979).10

C. Reconsidering the Abduction Rule11

Although I disagree with the dissent's argument that

Neliza's carjacking conviction cannot be affirmed under our current

carjacking jurisprudence, I must acknowledge my reservations about

the correctness of that jurisprudence. The notion that the offense

conduct for carjacking continues "while the carjacker maintains

control over the victim and his or her car" is essential to the

holding that Neliza was properly convicted as an aider and abettor.

That construction of the carjacking statute, which I will refer to

as the abduction rule, has been repeated in numerous cases in this

10
The dissent also raises the separate point that the
government has not fully developed on appeal the argument that
Neliza's conviction can be affirmed based on her conduct at the
house. We acknowledge that the government's briefing is rather
unhelpful in that regard and that we could perhaps deem the
argument to be abandoned or forfeited. See United States v. Vega
Molina, 407 F.3d 511, 524 (1st Cir. 2005) ("Under the circumstances
of this case, we choose not to do the government's homework.").
But potential forfeitures arising out of poor appellate briefing
can be excused under appropriate circumstances. See Charles A.
Wright et al., Federal Practice & Procedure: Jurisdiction § 3974.1
(4th ed. 2008). The government has invoked the relevant principles
and cases, albeit in connection with the intent element rather than
the offense conduct element. We will not reverse what is otherwise
a valid conviction because the government has done a poor job of
writing its brief.
11
As already noted, Judge Baldock does not join me in this
portion of the opinion. Therefore, I must resort to the first
person in describing my views. However, as Judge Torruella makes
clear in his separate opinion, he agrees with most of the analysis
here.

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circuit and finds support in several cases from other circuits.12

Nevertheless, the basis for that interpretation has never been

explained and does not appear to be firmly grounded in the

statutory text or the relevant case law. Although the panel is

bound to apply the abduction rule here, I believe the issue would

benefit from review by the full court. I explain my view.

1. Statutory Text -- "Taking"

Neliza's liability turns on whether Gabriel and Alberto's

offense conduct continued as long as Pérez was held hostage or

whether it ended at an earlier point. To determine whether (and

how long) offense conduct is capable of continuing, one must look

at the "the explicit language of the substantive criminal statute"

and the "nature of the crime involved." Toussie v. United States,

397 U.S. 112, 115 (1970). I address the statutory text in this

section, focusing on the meaning and duration of a "taking." In

the following section, I consider the possibility that carjacking

is by "nature" a crime that is capable of continuing after the

taking has ended.

The federal carjacking statute authorizes the punishment

of any individual who,

12
See Ramírez-Burgos, 313 F.3d at 30 n.9; Lebrón-Cepeda,
324 F.3d at 61; Matos-Quiñones, 456 F.3d at 19 n.4;
Martinez-Bermudez, 387 F.3d at 101; United States v. Cline, 362
F.3d 343, 353 (6th Cir. 2004); United States v. Hicks, 103 F.3d
837, 843 & nn. 4-5 (9th Cir. 1996), overruled on other grounds by
United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en
banc).

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 with the intent to cause death or serious
bodily harm takes a motor vehicle that has
been transported, shipped, or received in
interstate or foreign commerce from the person
or presence of another by force and violence
or by intimidation, or attempts to do
so . . . .

18 U.S.C. § 2119. At the core of the crime of carjacking is the

forcible "taking" of a motor vehicle "from the person or presence

of another." "Taking" (or "caption," as it was also called) is a

common law term of art derived from the law of robbery and larceny.

It refers to the act of "securing dominion" over something. 3

LaFave, supra, § 19.3(a); see also 3 Charles E. Torcia, Wharton's

Criminal Law § 357 (15th ed. 2009) ("There is a caption when the

defendant takes possession. He takes possession when he exercises

dominion and control over the property."). "Taking" was distinct

from "carrying away" (or "asportation"), which was a separate

element and could not occur until after the property had been

"taken." 3 Torcia, supra, § 357. Thus, at common law, a taking

was complete once the defendant had secured initial control over

the property in question.13

13
The scope of a taking was not simply an academic matter.
Because the use of force or fear had to coincide with the taking at
common law, the narrow understanding of a taking significantly
restricted the scope of a robbery. See William Blackstone, 4
Commentaries * 242 ("[I]f one privately steals sixpence from the
person of another, and afterwards keeps it by putting him in fear,
this is no robbery, for the fear is subsequent."); 4 Torcia, supra,
§ 463 ("At common law, . . . force or threatened force (putting a
victim in fear of injury) amounts to robbery only if it is used to
'take' property from the possession of another. Force or
threatened force used thereafter, in order to retain possession of

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 Some modern cases have adopted the view that a "taking"

continues until the defendant has achieved "complete and exclusive

control" over the property, which may be some time after the

initial seizure. Jacobs v. United States, 861 A.2d 15, 21 (D.C.

2004), judgment and opinion vacated and reissued, 886 A.2d 510

(D.C. 2005). Under that theory, "a 'taking' is not complete --

that is to say, has not come to an end -- until the perpetrator has

neutralized any immediate interference with his or her possession."

State v. Mitchell, 675 S.E.2d 435, 438 (S.C. 2009) (internal

citations and quotation marks omitted); see also People v. Webster,

814 P.2d 1273, 1289 (Cal. 1991) ("The act of 'taking' begins when

the separation of the victim from his or her property occurs, and

it continues through the forcible consummation."). A few cases

have applied that theory to the federal robbery statutes, see,

e.g., United States v. Martin, 749 F.2d 1514, 1518 (11th Cir. 1985)

("The 'taking' contemplated by [the federal Bank Robbery Act] is

not completed until 'the possibility of the item being recovered'

has ended," which "continues so long as flight occurs from the

possibility of hot pursuit." (quoting United States v. Jarboe, 513

F.2d 33, 37 (8th Cir. 1975))), and some cases have used similar

language in the context of the carjacking statute, see, e.g.,

United States v. Wright, 246 F.3d 1123, 1126 (8th Cir. 2001)

("'Taking' for purposes of section 2119 is 'the acquisition by the

the property taken or to facilitate escape, does not qualify.").

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robber of possession, dominion or control of the property for some

period of time.'" (quoting United States v. Moore, 73 F.3d 666, 669

(6th Cir. 1996)).

The Supreme Court seems to have endorsed a narrow

understanding of "taking" in a leading carjacking case. In

Holloway v. United States, the Court noted that the carjacking

statute's "mens rea component . . . modifies the act of 'tak[ing]'

the motor vehicle. It directs the factfinder's attention to the

defendant's state of mind at the precise moment he demanded or took

control over the car 'by force and violence or by intimidation.'"

526 U.S. 1, 8 (1999). That passage equates the "act of taking"

with seizing control of the vehicle and suggests that the act

occurs at a "precise moment." Of course, Holloway did not involve

an extended carjacking/abduction like this case. See id. at 4 n.3

("[T]he accomplice produced his gun and threatened, '"Get out of

the car or I'll shoot."'"); see also Lebrón-Cepeda, 324 F.3d at 64

(Howard, J., concurring) (arguing that Holloway did not address

"matters pertaining to what we have called 'the temporal limits' of

a carjacking"). Nevertheless, it is an important data point to

consider. Cf. SEC v. Rocklage, 470 F.3d 1, 7 n.3 (1st Cir. 2006)

("Even dicta in Supreme Court opinions [are] looked on with great

deference.").

In any case, it is not necessary to delimit the precise

scope of a taking to see that the abduction rule is not grounded on

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any settled understanding of the word "taking." Even under the

broadest view, a taking ends once the victim has been subdued and

the defendant's control over the vehicle is "complete."

2. Nature of Carjacking

I noted above that certain offense conduct may be deemed

to continue if "the nature of the crime involved is such that

Congress must assuredly have intended that it be treated as a

continuing one." Toussie, 397 U.S. at 115; see also United States

v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999) ("[W]e have never

before held, and decline to do so here, that verbs are the sole

consideration in identifying the conduct that constitutes an

offense."). It is possible, then, that the duration of a

carjacking might extend beyond the initial taking if it is by

"nature" a continuing offense.

The robbery case law is instructive on this point. See

Jones v. United States, 526 U.S. 227, 235 (1999) (noting that

"carjacking is a type of robbery" and that "Congress modeled the

federal carjacking statute on several other federal robbery

statutes"). Federal and state courts have long held that the

offense conduct for robbery does not end when the initial taking is

complete. Rather, the offense conduct continues until the

perpetrator "has won his way to a place of temporary safety"

because escape is "inherent" to the crime of robbery. Martinez-

Bermudez, 387 F.3d at 102; see also United States v. Williams, 344

-19-
F.3d 365, 372-73 (3d Cir. 2003) (collecting federal cases); United

States v. Garcia-Caraveo, 586 F.3d 1230, 1235-36 (10th Cir. 2009)

(collecting state cases and statutes).14 On that theory, an

accomplice can be convicted of aiding and abetting a robbery even

if she participated in the escape phase only. See United States v.

James, 998 F.2d 74, 80 (2d Cir. 1993).

This court adopted a similar construction of the

carjacking statute in United States v. Martinez-Bermudez, 387 F.3d

98 (1st Cir. 2004). Reasoning in that case that "flight with the

vehicle is inherent to the crime" of carjacking, we held that a

carjacking continues at least until the perpetrator "has won his

way to a place of temporary safety." Id. at 102. There is no need

to question that interpretation here. It is well-grounded in the

robbery case law and is consistent with familiar principles of

criminal law. See United States v. DeStefano, 59 F.3d 1, 4 & n.5

(1st Cir. 1995). In any event, application of the temporary safety

rule, if it applied, would not be enough to support Neliza's

conviction in this case because the evidence does not suggest that

she helped Alberto and Gabriel escape from the scene of the

carjacking.

The California Supreme Court has broadened the temporary

safety rule in a way that is relevant to this case. In People v.

14
The Ninth Circuit has taken the somewhat narrower view
that a robbery continues until the period of "hot pursuit" has
ended. United States v. Pike, 473 F.3d 1053, 1060 (9th Cir. 2007).

-20-
Stankewitz, 51 Cal.3d 72, 81 (1990), the defendant was given the

death penalty based in part on a finding that he killed the victim

"during" the commission of a robbery. He challenged that finding

on appeal, arguing that he had reached a place of temporary safety

before the victim was killed and therefore did not kill her

"during" the robbery. Id. at 101. The California Supreme Court

disagreed:

So long as he held the robbery and kidnapping
victim, defendant's safety was continuously in
jeopardy. At any point in the journey, at any
one of the several stops the group made
between the Kmart and the killing scene, in
any unguarded moment, the victim might have
managed to escape or signal for help. There
was never a moment when defendant could
reasonably be said to have reached a place of
temporary safety.

Id.

Stankewitz provides what may be the best support for the

view that the offense conduct for carjacking continues "while the

carjacker maintains control over the victim and his or her car."

As far as I am aware, however, no other jurisdiction has adopted

the reasoning of Stankewitz. Even in California, the rationale of

Stankewitz may not be transferable to questions of accomplice

liability. See People v. Cooper, 53 Cal.3d 1158, 1169 (1991)

("[W]e decline to adopt the escape rule, applicable in the context

of certain ancillary consequences of robbery, for purposes of

determining aider and abettor liability.").

-21-
 Finally, to the extent that the legislative history may

shed light on Congress's intent, it seems that Congress was simply

not thinking about extended carjacking/abductions when it enacted

§ 2119. See, e.g., H.R. Rep. No. 102-851, pt. 1, at 15 (1992) ("In

[an 'armed carjacking'], two or three criminals approach a car

waiting at a traffic light, or stopped by means of a deliberate

'fender-bender' accident, and force the driver to turn over the

keys at gunpoint."); 138 Cong. Rec. S17,958-02 (daily ed. Oct. 8,

1992) (statement of Sen. Lautenberg) ("Increasingly, thieves are

using violence and intimidation to force drivers to give up their

cars.").

The text of the federal Bank Robbery Act, which served as

a model for the carjacking statute, reinforces this point. That

statute contains a separate provision to cover robbery/abductions:

Whoever, in committing any offense defined in
this section, or in avoiding or attempting to
avoid apprehension for the commission of such
offense, or in freeing himself or attempting
to free himself from arrest or confinement for
such offense, . . . forces any person to
accompany him without the consent of such
person, shall be imprisoned not less than ten
years, or if death results shall be punished
by death or life imprisonment.

18 U.S.C. § 2113(e). It would thus appear that Congress knows how

to authorize the punishment of abductions when it wants to provide

for it. "That Congress failed to do so here argues forcefully that

such authorization was not its intention." Omni Capital Int'l,

Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106 (1987).

-22-
 3. First Circuit Precedent

The origins of the abduction rule in this circuit also

raise doubts about its validity. We developed the rule in two

cases: Ramírez-Burgos v. United States, 313 F.3d 23 (1st Cir. 2002)

and United States v. Lebrón-Cepeda, 324 F.3d 52 (1st Cir. 2003)

(per curiam). Ramírez-Burgos raised the issue of when a serious

bodily injury "results" from a carjacking within the meaning of 18

U.S.C. § 2119(2). Lebrón-Cepeda raised the related issue of when

a killing is "committed in the perpetration of" a carjacking for

purposes of the felony murder statute, 18 U.S.C. § 1111.15

We decided both cases on the assumption that, to be

punishable, a serious bodily injury or killing must occur while the

offense conduct is still continuing. See Ramírez-Burgos, 313 F.3d

at 30 (The term "results" includes "injuries that were caused by

the actions of the carjacker at any time during the commission of

the carjacking."); Lebrón-Cepeda, 324 F.3d at 61 ("Lebrón concedes

that the success of his challenge to the application of the

[felony] murder cross reference depends on our finding that the

killing of Fontánez did not occur during the carjacking."). Both

cases involved harms that occurred long after the vehicle had been

15
More precisely, Lebrón-Cepeda raised the issue in the
context of the Sentencing Guidelines murder cross-reference, which
is keyed to the murder statute. See USSG § 2B3.1(c) ("If a victim
was killed under circumstances that would constitute murder under
18 U.S.C. § 1111 had such killing taken place within the
territorial or maritime jurisdiction of the United States, apply
§ 2A1.1 (First Degree Murder).").

-23-
seized. In explaining why those harms were properly considered in

punishing the defendants, we expansively construed the carjacking

statute, holding that "the commission of a carjacking continues at

least while the carjacker maintains control over the victim and her

car." Ramírez-Burgos, 313 F.3d at 30 n.9. We gave no further

explanation for that statement and cited a prior First Circuit case

that, on closer scrutiny, does not seem to provide the necessary

support. Id. (citing United States v. Vázquez-Rivera, 135 F.3d

172, 178 (1st Cir. 1998)).16

16
In Vázquez-Rivera, we held that the "if serious bodily
injury results" provision is not limited to injuries that are
"'necessary to' or 'intended to effectuate' the taking of the
vehicle itself." 135 F.3d at 178. Rather,

the choice of the word "results" . . . suggests that
Congress intended to cover a fairly broad range of
consequences flowing from a carjacking. Moreover, the
legislative history characterized the provision as
imposing the enhancement when the carjacking "involves
bodily injury," which supports the view that the injuries
covered are not limited to those resulting from the
"taking" of a vehicle, but also include those caused by
the carjacker at any point during his or her retention of
the vehicle.

Id. (internal citation omitted). Although we suggested that our
discussion implicated the "temporal limits of the crime of
carjacking," it is clear that we were discussing the necessary
causal connection between the offense conduct and the resulting
serious bodily injury. Id. But see Lebrón-Cepeda, 324 F.3d at 64
n.4 (Howard, J., concurring) (recognizing that Vázquez-Rivera did
not "explicitly" state the abduction rule, but arguing that it
"implied as much when it held that a serious bodily injury
sustained by a carjacking victim during a sexual assault that
followed both the initial seizure of her vehicle and her kidnaping
'result[ed]' from the carjacking").

-24-
 In retrospect, Ramírez-Burgos and Lebrón-Cepeda may have

rested on an erroneous premise. Cases interpreting similar

criminal statutes have not taken the view that an injury or killing

must happen while the offense conduct is still continuing to be

punishable.

For example, of the many criminal statutes containing an

"if serious bodily injury results" or "if death results" provision,

I am not aware of any that have been interpreted to mean that the

offense conduct must be technically ongoing at the time of the

injury or death. Instead, the applicability of such provisions

turns on a causation analysis. See, e.g., United States v. De La

Cruz, 514 F.3d 121, 138 (1st Cir. 2008) (holding that death

"results" from the use of illegally distributed drugs if the death

"was caused in fact by [the decedent's] use of drugs that were

distributed either by the defendant himself or by others in a

conspiracy of which the defendant was a part"); United States v.

Marler, 756 F.2d 206, 216 (1st Cir. 1985) (holding that death

"results" from a deprivation of civil rights if the death was "a

natural and foreseeable result of the improper conduct"). See

generally United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010).

Proof that the injury or death happened while the offense conduct

was continuing is neither necessary nor sufficient to show that the

harm "result[ed]" from the offense.

-25-
 Similarly, the felony murder rule does not require proof

that the underlying felony was technically ongoing when the killing

happened. If the felony and the killing occur as part of the same

criminal transaction, the defendant will usually be liable for

felony murder. See, e.g., State v. Rice, 184 S.W.3d 646, 663

(Tenn. 2006) ("The killing may precede, coincide with, or follow

the felony and still be considered as occurring 'in the

perpetration of' the felony offense, so long as there is a

connection in time, place, and continuity of action.") (internal

quotation marks and citations omitted); Erwin S. Barbre, What

Constitutes Termination of Felony for Purpose of Felony-Murder

Rule, 58 A.L.R.3d 851, § 2[a] (1974) (stating that most courts

require that "the felony and homicide be part of a continuous

transaction, that the homicide be incident to the felony, or that

there be no break in the chain of events between the felony and the

homicide"). Thus, our assumption in Lebrón-Cepeda that the

defendant's challenge could succeed only if we found that "the

killing of [the victim] did not occur during the carjacking" was

probably inaccurate. 324 F.3d at 61 (emphasis added).

In short, it may have been unnecessary for us to develop

the abduction rule in the first place. If we had applied a

causation analysis in Ramírez-Burgos and a transactional analysis

in Lebrón-Cepeda, we would almost certainly have reached the same

result. A rethinking of the abduction rule will not seriously

-26-
disturb our settled precedent. Indeed, it would not affect Gabriel

and Alberto's convictions in this case. They were properly

convicted as principals to the carjacking, and they can be held to

account for the "result[ing]" death of Pérez even if that death did

not occur until after the offense conduct had ended.

4. Conclusion

All of these factors lead me to conclude that it is time

to reconsider the abduction rule, which can lead to strange and

seemingly arbitrary results. In this case, Neliza is guilty of

carjacking simply because Gabriel and Alberto decided to keep Pérez

in the car rather than abandon the car and hold Pérez captive in

the house. See Ramírez-Burgos, 313 F.3d at 30 n.9 ("[T]he

commission of a carjacking continues at least while the carjacker

maintains control over the victim and her car.") (emphasis added).

Moreover, to the extent the question might be close, the rule of

lenity and a presumption against continuing offenses17 might weigh

in favor of a narrower interpretation of the carjacking statute.

The temporal scope of carjacking is likely to be a

recurring issue in this circuit. It frequently arises in appeals

involving the intent element of carjacking. See Lebrón-Cepeda, 324

F.3d at 62-66 (Howard, J., concurring). It may also have

implications for venue, see Rodriguez-Moreno, 526 U.S. at 281-82;

17
See Toussie, 397 U.S. at 115; id. at 135 (White, J.,
dissenting); United States v. Johnson, 323 U.S. 273, 278 (1945).
But see United States v. Bailey, 444 U.S. 394, 413 (1980).

-27-
statutes of limitations, see Toussie, 397 U.S. at 114; ex post

facto challenges, see United States v. Muñoz-Franco, 487 F.3d 25,

55 (1st Cir. 2007); and Double Jeopardy challenges, see Brown v.

Ohio, 432 U.S. 161, 169-70 & n.8 (1977); Blockburger v. United

States, 284 U.S. 299, 302 (1932). If we intend to adhere to an

interpretation with such important consequences, we should at least

provide a more fully reasoned justification for our decision.18

D. Conspiracy

Neliza's challenge to her conspiracy conviction also goes

to the timing of the offense. She argues that "the evidence

presented at trial failed to establish that she was a member of the

conspiracy when the forcible taking of the vehicle occurred."19

However, conspiracy, like carjacking in this circuit, is often a

continuing offense. Muñoz-Franco, 487 F.3d at 55 n.32. As alleged

in the indictment and implicitly found by the jury, the conspiracy

in this case continued at least while Pérez was held hostage. See

Papa, 555 F.3d at 36 n.3 ("[A] conspiracy generally ends when the

design to commit substantive misconduct ends . . . .") (quoting

18
In questioning the validity of Neliza's carjacking
conviction, I do not in any way minimize the seriousness of her
alleged conduct. She could certainly have been held to answer for
that conduct under the laws of Puerto Rico, and she might have been
charged federally as an accessory after the fact like her brother
José, see 18 U.S.C. § 3.
19
She also suggests in passing that she did not have the
necessary intent. As with the carjacking count, we deem her intent
argument waived for lack of development. Zannino, 895 F.2d at 17.

-28-
Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1117-18

(D.C. Cir. 1991)).20

Although there is no evidence that Neliza was involved

during the initial planning phase, "the government does not need to

show as a precursor to a finding of guilt that a given defendant

took part in all aspects of the conspiracy." United States v.

Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). The evidence of her

later involvement provided a sufficient basis for the jury to infer

that she knew of Alberto and Gabriel's plan, shared their common

purpose, and acted to further that plan or purpose. No more was

needed to sustain her conviction.

E. Firearm Count

Neliza's final sufficiency of the evidence argument goes

to her conviction on the firearm count. The indictment alleged

that she aided and abetted Alberto and Gabriel in their use and

carriage of a firearm during the carjacking.21 To secure a

20
Of course, the duration of the conspiracy to commit
carjacking is linked to the duration of the carjacking itself. We
do not purport to decide what effect, if any, an abandonment of the
abduction rule would have on Neliza's conspiracy conviction.
21
Neliza was sentenced to a mandatory minimum term of seven
years under 18 U.S.C. § 924(c)(1)(A)(ii), which applies when a
firearm is "brandished." It is not clear what facts justified that
enhanced sentence or whether the district court even made the
necessary findings before imposing it. See Harris v. United
States, 536 U.S. 545, 556 (2002) (holding that "brandishing and
discharging [are] sentencing factors to be found by the judge").
Our conclusion that the conviction cannot stand makes it
unnecessary to address those issues.

-29-
conviction on that count, the government had to prove that Neliza

knew "to a practical certainty" that her confederates would carry

or use a firearm and that she "willingly took some step to

facilitate the carrying or use." United States v. Medina-Román,

376 F.3d 1, 6 (1st Cir. 2004).

We are frankly at a loss to understand what evidence

could have supported a finding of guilt under that standard. As we

have said, there is no evidence that Neliza was involved in the

initial seizure of the car. Moreover, while there is evidence that

Alberto carried a firearm throughout the entire episode, there is

no evidence that Neliza was aware of the firearm or that she took

any steps to facilitate the carrying of the firearm. The

government has not assisted us at all in this regard. It either

overlooked Neliza's argument or chose not to respond to it.

Under the circumstances, we must conclude that there was

insufficient evidence to support Neliza's conviction on the firearm

count. It was unreasonable for the jury to find Neliza guilty in

the absence of any proof that she knowingly facilitated the use or

carriage of the firearm. See United States v. Luciano-Mosquera, 63

F.3d 1142, 1151-52 (1st Cir. 1995).

III.

We turn now to Neliza's evidentiary and procedural

arguments in support of her request for a new trial.

-30-
A. Alberto's Phone Conversation

At trial, the government introduced the recording of a

telephone conversation between Alberto and his mother:

Alberto: Neliza is the one who's talking.

Mother: Really?

Alberto: I saw the sworn statement.

Mother: Yes, the police told me.

Alberto: Yeah? That bitch is going to
fuck us over. We can't talk too
much through here, either.

Mother: They told me that she talked
really bad -- that she was
talking about . . .

Alberto: I saw the sworn statement,
that's all I have to say. I
went to court yesterday.

Neliza argues that the introduction of the phone

conversation violated her rights under the Confrontation Clause,

which provides that "[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against him." U.S. Const. amend. VI. The Supreme Court's

decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Davis

v. Washington, 547 U.S. 813 (2006), define the basic contours of

the Confrontation Clause as it applies to out-of-court statements.

Under those cases, "testimonial" statements may not be admitted as

evidence of a defendant's guilt unless the declarant can be cross-

examined on the witness stand at trial or, if the declarant is

-31-
unavailable, the defendant had a prior opportunity for

cross-examination. See Melendez-Diaz v. Massachusetts, 129 S. Ct.

2527, 2531 (2009); Whorton v. Bockting, 549 U.S. 406, 413 (2007).

Non-testimonial statements, by contrast, do not "cause the

declarant to be a 'witness'" within the meaning of the Sixth

Amendment and thus are "not subject to the Confrontation Clause."

Davis, 547 U.S. at 821.

In multi-defendant trials like this one, an additional

layer of analysis may be necessary. When the prosecution seeks to

introduce a statement made by one of the defendants, the statement

will typically be admissible against that defendant (the

declarant), who has no constitutional right to confront himself.

See United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir.

1978); United States v. Brown, 441 F.3d 1330, 1359 (11th Cir.

2006); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's

Federal Evidence § 802.05[3][d] (2d ed. 2005). But introduction of

the statement may raise confrontation problems with respect to the

other defendants if the declarant exercises his right not to

testify at trial.

Before Crawford and Davis were decided, the Supreme Court

developed a two-tiered framework for determining admissibility when

a non-testifying defendant's statement is proffered at trial.

Statements that facially incriminate a co-defendant are per se

inadmissible under the rule of Bruton v. United States, 391 U.S.

-32-
123 (1968). See also Gray v. Maryland, 523 U.S. 185, 192 (1998).

By contrast, statements that incriminate a co-defendant "only when

linked with evidence introduced later at trial" can be admitted if

references to the co-defendant are redacted and the jury is

instructed not to consider the statement against any defendant

other than the declarant. Richardson v. Marsh, 481 U.S. 200, 208,

211 (1987). We presume in the latter situation that the jury will

follow instructions and consider the statement only for the proper

purpose (assessing the declarant's guilt) and not the improper

purpose (assessing the co-defendant's guilt). See id. at 206-07,

211.

The Bruton/Richardson framework presupposes that the

aggrieved co-defendant has a Sixth Amendment right to confront the

declarant in the first place. If none of the co-defendants has a

constitutional right to confront the declarant, none can complain

that his right has been denied. It is thus necessary to view

Bruton through the lens of Crawford and Davis. The threshold

question in every case is whether the challenged statement is

testimonial. If it is not, the Confrontation Clause "has no

application." Bockting, 549 U.S. at 420; see also United States v.

Johnson, 581 F.3d 320, 326 (6th Cir. 2009) ("Because it is premised

on the Confrontation Clause, the Bruton rule, like the

-33-
Confrontation Clause itself, does not apply to nontestimonial

statements.").22

Applying these principles, we conclude that Neliza's

confrontation argument is without merit. We considered the

character of the phone conversation in the companion opinion,

holding that the statements made by Alberto and his mother were not

testimonial. See Castro-Davis, Nos. 08-2108, 08-2109. As a

consequence, Neliza has no constitutional right to confront

Alberto. Her claim under the Confrontation Clause, whether

denominated a Crawford challenge or a Bruton challenge, must be

rejected.23 Johnson, 581 F.3d at 326.

22
Accord United States v. Smalls, 605 F.3d 765, 768 n.2
(10th Cir. 2010); United States v. Avila Vargas, 570 F.3d 1004,
1008-09 (8th Cir. 2009); Thomas v. United States, 978 A.2d 1211,
1224-25 (D.C. 2009); United States v. Pike, 292 F. App'x 108, 112
(2d Cir. 2008) (summary order); 5 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 1:40 (3d ed. 2007).
23
Of course, the phone conversation must still meet the
requirements of the Federal Rules of Evidence. See Johnson, 581 at
325-26. The district court ruled that the phone conversation was
hearsay but nevertheless admissible against Neliza as a statement
against penal interest. See Fed. R. Evid. 804(b)(3). Neliza
challenges that ruling on appeal, arguing that nothing in the phone
conversation was against her (Neliza's) penal interest. That is
not the relevant inquiry, however. Rule 804(b)(3) requires the
district court to ask whether the statement at issue "so far tended
to subject the declarant" -- in this case, Alberto -- "to . . .
criminal liability . . . that a reasonable person in the
declarant's position would not have made the statement unless
believing it to be true." Id. (emphasis added). Neliza makes no
argument on that issue, and we decline to address it without the
benefit of briefing.

-34-
B. Gabriel's Statement

Neliza also raises a Confrontation Clause challenge with

respect to the trial testimony of FBI agent Eric Gonima. In his

testimony, Gonima recounted the details of a post-arrest interview

he conducted with Gabriel. Gabriel denied all involvement with the

carjacking and killing of Pérez in the interview. He briefly

mentioned Neliza, acknowledging that she had been his girlfriend

and that he knew her family, though "not very well." Neliza argues

that it was erroneous for the district court to admit the testimony

without instructing the jury that Gabriel's statement could not be

considered as evidence against her. See Richardson, 481 U.S. at

211. Because she objected at trial, we review her claim de novo.

United States v. Vega Molina, 407 F.3d 511, 519 (1st Cir. 2005).

Gabriel's statement to the FBI was undoubtedly

testimonial, and it therefore falls within the scope of the

Confrontation Clause. We would ordinarily ask at this point

whether the statement was "inculpatory on its face" with respect to

Neliza. Id. at 520. There is no need to undertake that inquiry

here, however, because the government concedes that even if the

statement was admissible, it was error to admit it without a

limiting instruction. See id. at 521 ("Supreme Court case law

makes clear that the trial court ordinarily should instruct the

jury that one defendant's out-of-court confession may not be used

against his codefendants in a joint trial.").

-35-
 Nevertheless, the government says, the district court's

error was harmless beyond a reasonable doubt. We agree. The only

fact about Neliza that was directly or indirectly revealed through

Gabriel's statement was the existence of her relationship with

Gabriel. But that relationship was already well-established

through José's testimony and the testimony of neighbors. Gabriel's

statement added no new information in that regard. Any error in

admitting the statement without a limiting instruction was harmless

beyond a reasonable doubt.

C. Peremptory Challenges

Neliza criticizes the district court's procedure for

exercising peremptory challenges at voir dire. Because she did not

make a contemporaneous objection, we review for plain error.

Federal Rule of Criminal Procedure 24 sets forth the

number of regular peremptory challenges that the parties may

exercise and grants them several "additional" challenges that "may

be used only to remove alternate jurors." We have interpreted the

rule to mean that the district court must designate particular

members of the venire as prospective alternate jurors and must

limit the parties' additional challenges to that group. See United

States v. González-Meléndez, 594 F.3d 28, 33 (1st Cir. 2010). The

district court failed to follow that procedure in this case.

Rather than separating the parties' regular strikes from their

additional strikes, it required the parties to exercise all of

-36-
their strikes at once against an undifferentiated panel of

prospective jurors. That was error, as the government concedes.

Nevertheless, Neliza has not shown that the error was

prejudicial. See United States v. Olano, 507 U.S. 725, 735 (1993)

(plain error standard generally requires the defendant to show that

the error "affected the outcome of the district court

proceedings"). She argues that she suffered prejudice because one

of the regular jurors was excused and replaced by an alternate

juror. We rejected that same argument on materially identical

facts in United States v. González-Meléndez, a decision made under

the Rule 52(a) harmless error standard:

Gonzalez-Melendez . . . distinguishes [United
States v. Brown, 510 F.3d 57 (1st Cir. 2007)
and United States v. Flaherty, 668 F.2d 566
(1st Cir. 1981), where we found similar errors
to be harmless]. Unlike in those cases, he
observes, in this case an alternate juror was
actually seated. Thus, he claims, prejudice
is readily apparent in his case.

We do not see how that conclusion follows. It
is not evident that the composition of the
jury would have differed had the district
court adhered to Rule 24(c)(4). Moreover,
even if a different venire member would have
been selected as the alternate juror, there is
no basis in the record for concluding that the
alteration in jury composition had an
injurious influence on the verdict.
Therefore, we conclude that the court's error
was harmless.

-37-
594 F.3d at 34. As in González-Meléndez, there is no evidence here

that the district court's error injuriously affected the outcome of

the proceedings.24

D. Jury Note

Neliza's final procedural claim relates to a note sent by

the jury during deliberations. The note, which was made part of

the record, stated that the jury would like to "hear again the

phone conversation between [Alberto] and his mother." The district

court's minute entry from that day indicates that the note was

"received and discussed with counsel," but there is no indication

what action, if any, was taken in response. The trial transcript

contains no record of any proceedings involving the jury note.

Neliza argues that she was never informed of the note.

Although the minute entry contradicts her assertion, she has

included in the addendum to her brief an e-mail in which her trial

counsel denies any knowledge about how the note was handled. We

decline Neliza's invitation to delve into this dispute on the basis

of unsworn evidence that was never presented to the district court.

There are various avenues available to a party who seeks to remedy

a perceived omission or misstatement in the record. See Fed. R.

App. P. 10(c), (e); 16A Charles Alan Wright et al., Federal

24
This conclusion does not lessen our concern about the
district court's violation of the rule applicable to the selection
of alternate jurors. In the future, the district court should
scrupulously comply with Rule 24.

-38-
Practice & Procedure § 3956.4 (3d ed. 1999 & Supp. 2008). But

inserting new evidence into the addendum of a brief is not one of

those avenues. The e-mail is stricken from the record, and we

disregard Neliza's argument because it depends on the improperly

included material. See Nicholson v. Hyannis Air Serv., Inc., 580

F.3d 1116, 1128 (9th Cir. 2009).

We note that similar allegations regarding the handling

of a jury note were made in González-Meléndez, which was tried by

different attorneys before the same district court judge. In that

case, as here, the trial transcript contained no record of any

proceedings relating to the jury note. Because this issue may

recur, we emphasize again that proceedings in response to a jury

note should be conducted on the record. See United States v.

Ofray-Campos, 534 F.3d 1, 17 (1st Cir. 2008) (describing the proper

procedure); United States v. Rodriguez, 67 F.3d 1312, 1316 (7th

Cir. 1995); 28 U.S.C. § 753(b).

IV.

For the reasons stated above, we AFFIRM Neliza's

convictions on Count I (conspiracy) and Count II (carjacking),

REVERSE her conviction on Count III (carriage or use of a firearm

during a crime of violence), and REMAND for resentencing.

SO ORDERED.

– Concurring and Dissenting Opinion Follows –

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 TORRUELLA, Circuit Judge (Concurring in part; Dissenting

in part). My colleagues have written a cogent and well-reasoned

opinion, much of which I agree with. However, because "we cannot

affirm a criminal conviction on the basis of a theory not presented

to the jury," I must dissent. Chiarella v. United States, 445 U.S.

222, 236 (1980).

To begin, I reprise the relevant facts. Alberto,

Gabriel, and Neliza were indicted on the same charges and tried

jointly.25 There was enough direct and circumstantial evidence

presented to the jury to permit it to find that Alberto and Gabriel

took Pérez's car from his person by violence or intimidation, with

the aid of a firearm, and that sometime after this "physical

taking" they brought Pérez and his car to José's house for

safekeeping.26 See Castro-Davis, Nos. 08-2108, 08-2109. The

evidence as to Neliza's involvement on the other hand, was not so

clear. I agree with the majority that there was no evidence

presented that would allow a jury to make a reasonable inference

that Neliza was involved in the planning stages of the carjacking,

25
Count I of the indictment charged defendants under 18 U.S.C.
§ 371 (conspiracy to commit carjacking), Count II under 18 U.S.C.
§§ 2119(3) and 2 (aiding and abetting a carjacking resulting in
death), and Count III under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2
(using or carrying a firearm in connection with a carjacking).
26
I will refer to "physical taking" as the time period during
which the carjacker obtains possession of a motor vehicle while in
the presence of another. In the present case, that "physical
taking" ended once Pérez and his car were captured by the
carjackers and one of them began to drive it.

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or that she was involved at the "physical taking" of the car from

Pérez's person. See Maj. Op. at 9.

The evidence at trial instead showed that Neliza first

became involved when she called her brother, José, and told him to

step outside his home to receive Gabriel. That phone call,

however, did not establish that Neliza knew anything about the

carjacking. José testified that soon after receiving the call, he

stepped outside to meet Gabriel. His testimony was completely

devoid of any mention of Neliza. Conspicuously absent from the

record was any inquiry from the government as to Neliza's

whereabouts at this point in José's testimony.27 As the majority

opinion makes clear, the first time there was any evidence that

Neliza learned of the carjacking was many hours after the "physical

taking" of Pérez and his car.28

27
A reading of the trial transcript evinces copious use of the
word "they" by both the prosecution and witnesses, with no attempt
made to clarify whether "they" referred to Alberto, Gabriel and
Neliza; Alberto and Gabriel; or some other combination of the
three. In fact, when José testifies that Gabriel and Alberto
brought Pérez to the house, the prosecutor does not ask whether
Neliza (who José had testified had called him to come out of his
house to receive Gabriel) also came with Alberto and Gabriel.
Instead, the prosecutor next asks José: "Okay. So you were told
that Gabby and whoever were going to an ATM machine . . . ."
(emphasis added). As the majority points out, the government seems
to have chosen the same strategy on this appeal, referring to
appellants generically as "appellants" and not individually. Maj.
Op. at 9 n.7.
28
All the evidence points to the "physical taking" taking place
in the early hours of the afternoon. José testified that it was
"getting dark" when Neliza called. The official record of the
Astronomical Applications Department of the U.S. Navy indicates

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 As the majority well-states the law, a person cannot be

found guilty of aiding and abetting a crime that already has been

committed. See SEC v. Papa, 555 F.3d 31, 36 (1st Cir. 2009); see

also Maj. Op. at 6-7. Similarly for conspiracy. See United States

v. O'Campo, 973 F.2d 1015, 1021 (1st Cir. 1992) ("Under the

doctrine of Pinkerton v. United States, 328 U.S. 640, 645-46

(1946), a defendant co-conspirator may be held responsible for a

substantive crime committed by another conspirator in furtherance

of the conspiracy if that crime is committed while the defendant

co-conspirator is a member of the conspiracy." (emphasis added)).

The issue here is therefore about timing. Since Neliza's

involvement could only be found by a reasonable jury after the

"physical taking" of Pérez and his car took place, her conviction

must be overturned unless the offense of carjacking continued until

the time when Neliza first became involved. The majority holds

that the law of this circuit is such that the offense conduct of

carjacking in this case was still ongoing after the "physical

taking" since Alberto and Gabriel remained in control of the victim

Pérez and his car. It thus concludes that there was sufficient

evidence presented to the jury to convict Neliza based on the

that sundown was at 7:04 pm on July 15, 2006. Naval Oceanography
Portal: Sun Or Moon Rise/Set Table for One Year: U.S. Cities and
Towns at http//www.usno.navy.mil/USNO/astronomical-applications/
data-services/rs-one-year-us (last visited June 15, 2010). At
least three hours, and probably closer to five hours passed between
the "physical taking" and Neliza's involvement.

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theory that the offense conduct of carjacking is ongoing so long as

"the carjacker maintains control over the victim and [his or her]

car." See Maj. Op. at 24 (quoting Ramírez-Burgos, 313 F.3d at 30

n.9).

I do not disagree with the majority's reading of our case

law, although I have serious reservations about the correctness of

the abduction rule. First, as the majority explains, the abduction

rule was grounded on a case that does not actually support it. See

Ramírez-Burgos, 313 F.3d 23, 30 n.9 (1st Cir. 2002)(citing United

States v. Vázquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998)

(Torruella, C.J.) for the proposition that "the commission of a

carjacking continues at least while the carjacker maintains control

over the victim and her car."); see also Maj. Op. at 21 n.12. We

appear to have mechanically repeated this phrase in subsequent

opinions without explanation. See, e.g., United States v. Lebrón-

Cepeda, 324 F.3d 52, 61 (1st Cir. 2003); United States v. Matos-

Quiñones, 456 F.3d 14, 19 n.4 (1st Cir. 2006); United States v.

Martínez-Bermúdez, 387 F.3d 98, 101 (1st Cir. 2004).

Second, the abduction rule shifts the issue from a causal

analysis of whether serious bodily injury (§ 2119(2)) or death

(§ 2119(3)) results (is causally connected to) to an inquiry that

mechanically ends when the carjacker releases the victim and her

car. See Ramírez-Burgos, 313 F.3d at 30. In my view, this is a

misreading of the statute. As the majority explains, the word

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"results" merely indicates a causal connection, one not necessarily

circumscribed by the time when the offense conduct of the

carjacking ends. As an example, it seems clear that if a defendant

took a car, shot the victim in the process, and abandoned the car

an hour later, we would not say the crime was ongoing over the

course of the three weeks it took for the victim to languish in the

hospital and die. It also seems clear that in that situation, the

carjacker could be convicted under the plain language of § 2119(3).

However, under our current abduction rule, he might not be.

Finally, and as relevant later, I do not see where the

abduction rule is in any way supported by the plain language of the

statute,29 whether by a plain and commonsensical definition of the

word "take" -- "to get into one's hands or into one's possession,

power or control by force or stratagem"30 -- or as derived from the

common law of robbery and larceny. It is not apparent to me why a

reasonable person would read the carjacking statute and believe

29
18 U.S.C. § 2119(3) reads:

Whoever with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall
. . . if death results, be fined under this title or
imprisoned, any number of years up to life, or both, or
sentenced to death.

(emphasis added).
30
Webster's Third New International Dictionary Unabridged 2329
(1976).

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that the "taking" of a car under the statute continues while the

carjacker maintains control over the victim and his or her car. I

simply do not see how a reasonable person would assume that

"tak[ing] a motor vehicle . . . from the person or presence of

another by force and violence or by intimidation," § 2119(3), is an

act that continues past the moment when the carjacker has obtained

(i.e., already taken) clear possession (in this case, sometime

before Alberto and Gabriel arrived at José's house).

While I concur with the majority's analysis of our

current law and join in calling for the en banc court to correct

this error promptly, I nevertheless cannot join their conclusion.31

Although it may well be the law of our circuit, the abduction rule

theory was never presented to the jury as a basis of conviction.

Indeed, the jury was told they could convict on the basis of what

the majority calls "pure conjecture." See Chiarella v. United

States, 445 U.S. at 236 (finding that "we cannot affirm a criminal

conviction on the basis of a theory not presented to the jury");

Cola v. Reardon, 787 F.2d 681, 693 (1st Cir. 1986) (holding that it

is in violation of due process to affirm a conviction on a basis

neither set forth in the indictment nor presented to the jury at

trial); see also Dunn v. United States, 442 U.S. 100, 106 (1979)

(holding that "[t]o uphold a conviction on a charge that was

31
I do, however, join the majority's conclusion that there was
no evidence to support the gun charge against Neliza.

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neither alleged in the indictment nor presented to a jury at trial

offends the most basic notions of due process.").

At closing arguments, the government asked the jury to

infer that Neliza was involved at the time of the physical taking

of the vehicle from Pérez, arguing that it had been Neliza who

drove Gabriel and Alberto to the site of the carjacking because

"[s]omeone had to keep a gun on [Pérez]" or he would have escaped.

The government presented no evidence to support this theory nor did

it posit any other theory under which the jury should find Neliza

guilty. The jury was never told that Neliza could be legally

convicted even if the jury found that she first learned of the

carjacking after the "physical taking" had occurred, while Alberto

and Gabriel maintained control over Pérez and his car. See

Ramírez-Burgos, 313 F.3d at 30 n.9. Significantly, the government

never argued the "abduction rule" as the law of the circuit,

neither at trial nor in its appellate brief.32 Instead, the

government asked the jury to infer from the evidence presented that

Neliza was involved in the "physical taking" of the carjacking, or

possibly even before it, and that she must have known there was a

gun being used on Pérez. The majority finds correctly that this

32
Indeed, the government's appellate brief cites most of the
cases the majority discusses as setting out the abduction rule, but
it cites them for the issue of whether sufficient evidence was
presented as to the conditional intent to cause serious bodily harm
or death. See Gov't Brief at 21-23. Naturally, Neliza also did
not raise this theory at trial or on appeal.

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theory was "pure conjecture" and that there was not sufficient

evidence for a reasonable jury to convict Neliza based on this

theory. See Maj. Op. at 9.

The instructions given to the jury were also unclear as

to the temporal bounds of the offense conduct of carjacking, never

specifying that the offense conduct included the time after the

"physical taking" and that as such, Neliza could be convicted if

the jury found she was involved after Pérez and his car arrived to

José's house. Specifically, the jury was instructed that they

should convict if they found that the defendants either conspired

or aided and abetted each other in "taking Mr. Pérez's Mazda by

force and intimidation with intent to cause death and serious

bodily harm by force, violence, and intimidation, and actually

resulting in death." The instructions were not improper as to the

elements, they essentially mirrored the carjacking statute.

However, they did not clarify what those elements meant. The

instructions left up to the mind of the jury to define "taking" in

what I view as an unsupportable extension -- that is, as including

the conduct of defendants after they arrived at José's house. By

not defining our case law on the subject of carjacking and not

specifying that the act of carjacking in this case would legally

continue up until the moment that the carjackers lost control of

the victim or his car, and because this is by no means an obvious

or natural interpretation of the instructions, the only inference

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we have left is that the jury convicted Neliza on the government's

theory at trial which the majority now finds to be insufficient to

sustain her conviction.

"The Supreme Court has ruled that where a jury is given

the option of choosing between factually adequate and factually

inadequate theories of guilt, jurors 'are well equipped to analyze

the evidence' and can be counted upon to base their verdict upon

the factually adequate theory." Santellan v. Cockrell, 271 F.3d

190, 196 (5th Cir. 2001) (citing Griffin v. United States, 502

U.S. 46, 59 (1991)). However, that is not the case here. Here the

jury was given one theory of guilt: that Neliza was present at the

moment of the "physical taking." The jury was never told the

theory that the majority now uses to affirm her conviction: that

Neliza was involved after the "physical taking" but while the

carjackers remained in control of Pérez and his car. That a jury

might have "divined [this] theory from the facts" and from the law

as read to them in the jury instructions is not sufficient. Cola,

787 F.2d at 699 n.19. "The problem with th[at] view . . . is the

serious risk involved that the jury did not so divine the appellate

theory, and instead, that it convicted based on the erroneous or

noncriminal theories before it." Id. Barring any kind of

explanation as to the law of our circuit explaining the abduction

rule, I simply do not see how a jury might have divined it.

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 I view this case as analogous to the Supreme Court's

decision in Chiarella. 445 U.S. 222. In that case, the employer

of a financial printer engaged to print corporate takeover bids was

convicted based on his purchase of stock in target companies

without informing its shareholders of his knowledge of proposed

takeovers. Id. at 224-25. The Supreme Court held that his conduct

did not violate the Securities Exchange Act and thus his conviction

was improper. Id. at 224-35. In its brief to the Court, the

government for the first time offered an alternative theory to

support the conviction, arguing that petitioner's conviction could

be affirmed on the basis that he owed a duty to the corporation

that had hired the printing company. Id. at 235.33 The Supreme

Court reaffirmed the maxim that "we cannot affirm a criminal

conviction on the basis of a theory not presented to the jury," and

held that the jury instructions and the government's theory at

trial showed that the jury had convicted on the theory of

petitioner's failure to disclose to shareholders, and not on a duty

owed to anyone else. Id. at 236.

Similarly in our previous decision in Cola, 787 F.2d 681,

we granted habeas because the defendant had no notice at trial of

the theory which was eventually used by the state appeals court to

uphold his conviction. Citing to Dunn, 442 U.S. 100, and granting

33
I note that the government in this case has not brought up
the abduction rule at any point in these proceedings.

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habeas, we worried about the "sixth amendment problems of whether

defendants have ever been presented with an opportunity to

confront, in a fact-finding forum, the government's final theory of

guilt" and noted that it was "not clear whether an opportunity has

been provided to have guilt determined by a jury in the first

instance [on that theory]." Cola, 787 F.2d at 701. Just like in

Dunn, our court found that "the prosecution in Cola's trial did not

build its case on the evidence supporting the appellate theory,"

and rejected the assumption "that the jury would somehow divine,

and independently articulate, the appellate theory." Id. at 700;

Dunn, 442 U.S. at 106 ("[W]hile there was no variance between the

indictment and proof at trial, there was a discrepancy between the

basis on which the jury rendered its verdict and that on which the

Court of Appeals sustained petitioner's conviction.").

That there was evidence presented sufficient to convict

Neliza as an accessory after the fact under 18 U.S.C. § 3, there is

no doubt in my mind.34 However, the government did not charge

Neliza as an accessory after the fact. Neliza was charged in the

same way as Alberto and Gabriel: as an aider and abettor and

conspirator to carjacking and to carrying a firearm during a

carjacking. The firearm charge proved to be patently baseless, and

34
Neliza can also be properly charged in the Commonwealth
courts for the various state crimes which, if proven by proof
beyond a reasonable doubt, could very well result in her conviction
for several serious felony offenses.

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a directed verdict should have been entered by the district court

upon Neliza's Rule 50 motion. We correct that error now and I

fully join the majority in its decision as to that charge. But

because the majority upholds Neliza's conviction on a theory which

was never presented to the jury, I cannot join in upholding her

conviction as to the other two counts.

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