United States v. Mojica Baez

United States Court of Appeals
For the First Circuit

No. 98-2349

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN ALEXIS MOJICA-BAEZ,

Defendant, Appellant.

No. 98-2350

UNITED STATES OF AMERICA,

Appellee,

v.

JOSUE G. REYES-HERNANDEZ,

Defendant, Appellant.

No. 98-2351

UNITED STATES OF AMERICA,

Appellee,

v.

RODOLFO E. LANDA-RIVERA,

Defendant, Appellant.
No. 98-2352

UNITED STATES OF AMERICA,

Appellee,

v.

NELSON CARTAGENA-MERCED,

Defendant, Appellant.

No. 98-2353

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE RAMOS-CARTAGENA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Stahl and Lynch, Circuit Judges,
and Gorton, District Judge.*

* Of the District of Massachusetts, sitting by designation.

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 Robin J. Adler for appellant Mojica-Baez.
David W. Roman, with whom Brown & Ubarri was on brief, for
appellant Reyes-Hernandez.
Rafael F. Castro Lang for appellant Landa-Rivera.
Roberto Roldan-Burgos, by appointment of the court, for appellant
Cartagena-Merced.
Miriam Ramos Grateroles for appellant Ramos-Cartagena.
Timothy L. Faerber and Nelson Pérez-Sosa, Assistant United States
Attorneys, with whom Guillermo Gil, United States Attorney, and Jorge
E. Vega-Pacheco, Assistant United States Attorney, were on brief, for
appellee.

August 30, 2000
 LYNCH, Circuit Judge. Three armed men dressed in
security guard uniforms held up the Loomis, Fargo & Co. armored
car depot in Ponce, Puerto Rico, on May 13, 1997, while a fourth
robber stood watch outside. The robbers took the Loomis Fargo
guards captive as they returned to the company's offices in
armored vehicles from runs to area banks. All told, the robbers
got away with an estimated $5.5 million. Only about half a
million dollars was recovered; the weapons used were never
recovered. Four of the five defendants involved in this appeal
were convicted of the robbery and received sentences ranging
from 308 months to 355 months; the fifth defendant was convicted
of helping in the aftermath and was sentenced to 150 months
imprisonment.

The defendants originally raised a myriad of arguments

on appeal. In addition, after the Supreme Court decided United

States v. Castillo, 120 S. Ct. 2090 (2000), we requested that

the parties brief the effect of that decision. None of the

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defendants had raised at trial or on appeal a Castillo claim

that the use of a semiautomatic assault weapon in the robbery

was an element -- and not merely a sentencing factor -- of a

firearms offense. See 18 U.S.C. § 924(c)(1)(A), (B). This is

our first occasion to discuss the effects of Castillo on trials

and indictments, and our view on the indictment issue is quite

different from the view of another circuit. Save for one

sentencing issue regarding one defendant -- as to which the

government agrees that there was error and that the matter

should be remanded -- we reject the defendants' arguments.

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 I.

The four main defendants are John Alexis Mojica-Baez,

Josue G. Reyes-Hernandez, Nelson Cartagena-Merced, and Jose

Ramos-Cartagena. After a trial lasting almost a month, they

were convicted of committing the robbery. Specifically, all

four of these defendants were convicted of two counts of armed

robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (d); one count

of assault, in violation of 18 U.S.C. §§ 2, 2114(a); one count

of breaking and entering, in violation of 18 U.S.C. §§ 2, 2117;

and one count of using and carrying a firearm in relation to a

crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1).

Another co-defendant, Rodolfo E. Landa-Rivera, was convicted of

being an accessory after the fact to the robbery, in violation

of 18 U.S.C. §§ 3, 2113(a).1

The jury reasonably could have found the following

facts. Loomis Fargo2 armored trucks and vans began arriving at

the Loomis Fargo depot in Ponce shortly after 7 p.m. on May 13,

1997. The vehicles were returning with cash from the day's

1 We address the appeal of another co-defendant, Jessica Vega-
Coreano, in United States v. Vega-Coreano, No. 99-1343, in an opinion
published simultaneously with this one.
2 At the time, the company was named Wells Fargo.

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routes, which included a stop at a United States Post Office and

two federally insured banks, Banco Popular and Banco Santander.

When one of the guards from the first vehicle to arrive entered

the depot office, he was met by three men carrying long

firearms. They told him it was a hold up and that he was not to

move or they would shoot him. The three were dressed in

uniforms similar to Loomis Fargo uniforms and were wearing

bulletproof vests. As four successive trucks arrived at the

depot, the three men disarmed the guards, handcuffed them, and

locked them in a bathroom. The contents of the Loomis Fargo

vehicles were systematically transferred to a Loomis Fargo van

commandeered by the robbers. A fourth person, outside, worked

in tandem with the three fake guards, communicating with them by

walkie-talkie.

The robbers were voluble, threatening the guards,

telling them, "Last week we had to kill one guy, so you guys

better do what we say." They also told the guards several times

how powerful their weapons were, claiming, "This AK-47 that I

have here can actually punch through 12 guys," and "This thing

can even go through cement." One of the guards recognized a

weapon as an AK-47 and heard one of the robbers say, "This is an

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AK-47, and if I shoot you with this, I'll rip you up. I'll just

rip a part of you off." Another guard described the firearms

carried by the robbers as "assault weapons, big weapons."

The robbers also commented on their professionalism.

One of the guards testified that the robbers kept saying, "Look

how professional we are. We're really professionals." The

robbers reiterated that they were professionals, unlike the

other robbers who had been quickly caught after a recent,

unrelated Brinks robbery.

Once the Loomis Fargo van was loaded, the guard the

robbers had forced to help them was trussed and pushed into the

small bathroom that held nine other guards. The guards were

then locked in and they heard the robbers threaten to set the

place on fire. It took the guards about forty minutes to free

themselves; they then called for help. The handcuffs had to be

cut off of the guards, as the key holes had been soldered (or

welded) closed.

The robbers drove the Loomis Fargo van to another

location and transferred the money to a different vehicle, but

they left thirty unopened bags of money in the Loomis Fargo van.

Evidence tied the defendants to the robbery almost

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immediately afterwards. When news of the robbery was broadcast

on television, Ramos-Cartagena's wife, Jessica Vega-Coreano,

told Jessica Diaz-Nevarro, a friend and upstairs neighbor, that

Ramos-Cartagena and Reyes-Hernandez had committed the robbery.

The evening of the robbery, Ramos-Cartagena and Reyes-Hernandez

arrived back at Ramos-Cartagena's house driving a heavily laden

van. Reyes-Hernandez was wearing a uniform similar to a Loomis

Fargo uniform. Ramos-Cartagena ran into the house and asked

Vega-Coreano for keys. He had a cut on his head and was

shirtless. Vega-Coreano gave him a shirt to put on and asked

why they had not gotten rid of the clothes, to which he

responded, "Forget the shirt, I need the keys, I want the keys,

because we have to leave." He found the keys and drove off. A

short time later, Cartagena-Merced and Mojica-Baez arrived.

Mojica-Baez appeared happy, and he embraced Vega-Coreano and

said, "We did it. We did it" or "We won, we won." Cartagena-

Merced also appeared to be happy.

The robbery was, of course, planned in advance.

According to Diaz-Nevarro, the defendants met almost daily

during the two weeks prior the robbery. Diaz-Nevarro also saw

Ramos-Cartagena, Mojica-Baez, and Reyes-Hernandez loading

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ammunition into two long and three short guns the day before the

robbery. Landa-Rivera, who ultimately took some of the money to

hide, was also seen around the house before the robbery.

A confidential informant reported to the FBI that

before the robbery the defendants had stolen a van in the San

Juan area. After the robbery, a white van containing veterinary

products was found in a parking lot near the Loomis Fargo depot.

The van had been stolen from a veterinary products distributor

about a week before the robbery. Diaz-Nevarro testified to

seeing similar veterinary products in Ramos-Cartagena's house,

and, after having obtained warrants to search the defendants'

homes (based upon information provided by the confidential

informant), FBI agents found such products when they searched

the house.

The searches of the defendants' homes produced a wealth

of other incriminating evidence, including: $387,000 in cash

buried near Mojica-Baez's uncle's house and $13,000 in cash

inside the house;3 AK-47 ammunition and part of the barrel of an

AR-15 assault rifle at Mojica-Baez's house; $2,500 in cash in a

3 Mojica-Baez's uncle told police that someone had given him
the $13,000 to hold and had told him that it was from the Loomis Fargo
robbery.

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McDonald's bag hidden in a mattress and over $1,000 in a box and

in a magazine at Cartagena-Merced's house; a photograph of

Ramos-Cartagena holding an AK-47, AK-47 ammunition, police

uniforms similar to Loomis Fargo uniforms, two ski masks, four

boxes of two-way radios, some welding equipment, and wrappers

from Banco Popular and Banco Santander at Ramos-Cartagena's

house; wrappers from Banco Santander, a bag containing almost

$8,000 in cash, and a $45,000 check from the Lottery of Puerto

Rico made out to Reyes-Hernandez's mother and issued a week

after the robbery4 at Reyes-Hernandez's house; and a total of

$8,800 in cash in Landa-Rivera's car.

After their homes were searched, Ramos-Cartagena,

Reyes-Hernandez, Mojica-Baez, and Vega-Coreano traveled together

to the Geminis Hotel and rented rooms there. From there they

moved to the Joyuda Beach Parador Hotel, registering for three

rooms under a false name.

Unable to contain themselves with the riches, some of

the defendants went on spending sprees. The day after the

4 The record does not reveal the government's theory with
regard to the lottery check. It would seem that the government
believed the check was evidence of money laundering, see, e.g., United
States v. Gonzalez-Maldonado, 115 F.3d 9, 19 (1st Cir. 1997), but there
is no evidence in the record to that effect.

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robbery, Reyes-Hernandez bought a jet ski for $9,300 in cash

(carried in a plastic grocery bag). A search of the car in

which Ramos-Cartagena, Reyes-Hernandez, Mojica-Baez, and Vega-

Coreano were traveling when they were arrested turned up a

jewelry store receipt for a $900 cash purchase of two watches.

Cash abounded.

Unable to contain themselves verbally, the different

defendants made incriminating statements to others. Two days

after the robbery, Diaz-Nevarro overheard Reyes-Hernandez, in

the presence of Ramos-Cartagena, detailing what happened at the

Loomis Fargo office to Vega-Coreano. Diaz-Nevarro also

overheard Landa-Rivera describing to Vega-Coreano how the guards

had been tied up as they arrived at the depot. Diaz-Nevarro

testified that Ramos-Cartagena and Reyes-Hernandez were laughing

in response. Once arrested, Reyes-Hernandez, Ramos-Cartagena,

and Landa-Rivera told a fellow jailmate, Luis Nevarez-Marrero,

details of the planning and execution of the crime and their

efforts to get away. When arrested, Landa-Rivera told police

that he had been paid $6,000 to watch over two suitcases

containing $200,000 each from the Loomis Fargo robbery.

After he was arrested, Ramos-Cartagena told an FBI

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agent, "We were millionaires for a short time." The jury

decided that statement was true.

II.

Many of the arguments are joined by several of the

defendants and we cluster them. We deal first with

jurisdictional arguments, then with evidentiary objections. As

the defendants argue that their evidentiary objections are

precursors to their sufficiency of the evidence arguments, we

next deal with those sufficiency arguments. Finally, we address

the Castillo and sentencing issues.

A. Jurisdiction: Whether the money stolen was insured by the

FDIC or belonged to the United States

Counts 1 and 2 of the indictment, which alleged

violations of 18 U.S.C. § 2113(a), (d), required the government

to prove that the money taken during the robbery was insured by

the FDIC. See United States v. Wood, 780 F.2d 555, 556 (6th

Cir. 1986). At the close of the prosecution's case, Reyes-

Hernandez and Ramos-Cartagena moved for acquittal under Federal

Rule of Criminal Procedure 29, arguing that the government had

failed to prove this essential element. The motion was denied,

and they renew the argument on appeal.

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 It appears that the prosecution simply forgot to put

on evidence as to FDIC insurance in its case in chief.

Consequently, the defendants moved for entry of judgment of

acquittal after the government rested. Recognizing its blunder,

the prosecution requested that the court reopen the

prosecution's case in chief to permit it to present such

evidence or, alternatively, that the court take judicial notice

of the fact that Banco Popular and Banco Santander are insured

by the FDIC. The district court then indicated its inclination

to reopen to correct a "purely technical" error and urged the

parties to enter into a stipulation. The parties did enter into

a stipulation, without prejudice to their appellate rights, that

Banco Popular and Banco Santander were both insured by the FDIC.

The stipulation was presented to the jury.

On appeal the defendants object to the trial court’s

intervention on this issue, saying the court assumed the role of

the prosecution. We disagree and find that the district court

did not abuse its discretion in deciding to reopen. See United

States v. Santana 175 F.3d 57, 64 (1st Cir. 1999). There was no

serious dispute that the banks were federally insured, and the

government’s lapse was recognized in time.

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 Count 3 of the indictment, which alleged a violation

of 18 U.S.C. § 2114(a), required the government to prove that

the money belonged to the United States. See United States v.

Lawrence, 699 F.2d 697, 701-02 (5th Cir. 1983). With regard to

his conviction on this count, Ramos-Cartegena presses two

arguments. First, he says, § 2114 is limited to offenses having

a "postal nexus," and, although the jury instruction indicated

that the jury needed to find that postal service money was

stolen, the indictment failed specifically to allege that the

stolen money belonged to the United States Postal Service.

Second, he says there was insufficient evidence for the jury to

find that the money belonged to the United States Postal

Service. In fact, there was testimony from a Loomis Fargo guard

that he had stopped at a United States Post Office before the

robbers emptied his truck of its contents at the depot, and

documents were introduced estimating losses to the postal

service of over $2 million. The evidence was sufficient, and

the indictment, which referenced the statute and specifically

charged the robbers with stealing money belonging to the United

States, adequately and fairly charged the crime.

B. Evidentiary Rulings

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 We review the district court's evidentiary rulings for

abuse of discretion. See United States v. Lara, 181 F.3d 183,

195 (1st Cir.), cert. denied, 120 S. Ct. 432 (1999).

1. Admission of Hearsay Statement of Deceased Informant

At trial, FBI Agent Raymond Lopez testified that, as

a result of information from a confidential informant, he

prepared an affidavit that led to warrants to search the four

main defendants' homes on May 23, 1997. Agent Lopez said that

the informant had provided information that was detailed,

specific, and consistent with information that was not publicly

available. As a condition of the admissibility of Agent Lopez's

testimony as to what he was told by the informant, the court

inquired into why the informant was not available to testify.

The response was that he had been murdered. Defense counsel

moved for a mistrial, which was denied, or for an instruction.

The court, in response, simply instructed the jury that the

reason the informant was not there was that he was dead.

Agent Lopez, over objection, testified that the

informant had told him that two weeks before the robbery "this

group" had stolen a white van in the metropolitan San Juan area

in order to commit the Loomis Fargo robbery; that they had

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tinted the windows of the van to make it look like a standard

Loomis Fargo van; and that the van could be found at a K-Mart

shopping plaza near the Loomis Fargo depot. The van was found

there. The ostensible purpose of the testimony was to establish

that the stolen van had been used in the robbery, and the agent

never explicitly testified that the informant meant that the

defendants on trial constituted "this group." The court found

that the information from the informant had sufficient

guarantees of trustworthiness to be admissible hearsay under

Federal Rule of Evidence 807.

The court, apparently recognizing in hindsight the

dangers posed by the testimony that the informant had been

murdered, instructed the jury the next day that there was no

claim that the informant’s death was related to the case and

that his death could not be considered against any defendant.

The defendants level two objections. First, they claim

it was error for the court to have allowed the government to

introduce evidence that the informant had been murdered.

Second, they argue that the informants' statements did not meet

the trustworthiness requirements established under Ohio v.

Roberts, 448 U.S. 56, 66 (1980). This error, they say, denied

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them their Sixth Amendment right to be confronted with the

witnesses against them. See Lilly v. Virginia, 527 U.S. 116,

139 (1999).

The testimony that the witness was unavailable because

he had been murdered was unfortunate, and the trial judge's

initial instruction was insufficient. It would have been far

better if the trial judge had immediately made clear that there

was no claim, implicit or explicit, that these defendants were

somehow responsible for the murder. If matters had been left at

that, the defendants would have a very serious claim. But

matters were not left at that; the court quickly corrected the

error as its first order of business the next morning. That was

sufficient.

The second attack, based on Federal Rule of Evidence

807, rests on the premise that the informant's statements lacked

common attributes of trustworthiness: the informant never gave

his statement under oath, and he never claimed to be an

eyewitness. Moreover, his unavailability cannot be attributed

to the defendants so as to warrant admission of his statement.

Under Roberts, hearsay statements are considered

sufficiently trustworthy when the evidence either falls within

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a firmly rooted hearsay exception or it possesses particularized

guarantees of trustworthiness. See Roberts, 448 U.S. at 66.

This test was recently reaffirmed in Lilly, which emphasized

that appellate courts should conduct an independent review of

the trustworthiness finding. See Lilly, 527 U.S. at 136. The

informant's statements do not fall within the category of a

firmly rooted hearsay exception, so we look for any guarantees

of trustworthiness. The justification for a finding of

trustworthiness in this case is very thin, and the record on the

point is sparse. But this is not a case in which the issue is

important to the outcome. The testimony was admitted primarily

to show that the defendants stole the van (from which the

inference could be drawn that they stole it to use in the

robbery). This fact was established by evidence regarding the

veterinary products (1) that the van's owner testified were in

the van when it was stolen; (2) that Diaz-Nevarro saw in Ramos-

Cartagena's house; (3) that the FBI found in Ramos-Cartagena's

house; and (4) that the FBI found in the stolen van. Moreover,

there was considerable other evidence linking the defendants to

the robbery. If there was any error, it was harmless beyond a

reasonable doubt. See Chapman v. California, 386 U.S. 18, 24

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(1967).

2. Admission of Statements of Witnesses Nevarez-Marrero and

Diaz-Nevarro

Reyes-Hernandez and Mojica-Baez seek to raise an

argument that had its brief moment in the sun but has since

faded. The claim is that two prosecution witnesses received

something of value from the government in return for their

testimony, to wit, a reduced sentence and a cash stipend

respectively, and that this violates 18 U.S.C. § 201(c)(2),

which prohibits offering "anything of value" as an inducement to

a witness. This court flatly rejected that argument in Lara,

181 F.3d at 197-98, and we do so here.

3. Exclusion of Melendez testimony

The defendants wanted to put on evidence from Tomas

Melendez attacking the credibility of FBI agent Carlos Cintron,

who gave testimony inculpating the defendants. In particular,

they wanted to attack the investigation performed by the agent.

The issue of the exclusion of such evidence is,

however, more complicated than that. The first salvo by the

defense was to move to dismiss the second superceding

indictment, supporting that motion with an affidavit from

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Melendez to the effect that the indictment was based on

statements from Melendez and that Melendez had been coached on

what to say by agent Cintron. In response to this, the district

court held an evidentiary hearing and heard Melendez testify.

The court found that Melendez had committed perjury and ordered

his imprisonment. The agent next testified. In the end, the

government moved to dismiss the second superceding indictment

and proceeded at trial only on the first superceding indictment.

Agent Cintron testified at trial. Cintron testified

that he participated in the arrests of Ramos-Cartagena, Reyes-

Hernandez, Mojica-Baez, and Vega-Coreano on May 28, 1997, at the

Joyuda Beach Parador, and he identified evidence obtained at the

time of the arrests. The evidence included false identification

cards and a receipt for a May 21, 1997, cash purchase of two

expensive watches, both found in Vega-Coreano's handbag; false

identification cards in Ramos-Cartagena’s wallet; more than

$1,000 in cash taken from Reyes-Hernandez's person; and

newspapers with stories about the Loomis Fargo robbery. Cintron

also testified that Landa-Rivera provided a false name upon his

arrest.

After the agent's examination, the defendants indicated

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they wanted to subpoena the agent to testify in their case. The

court, noting the agent had an obligation to testify in another

court a few days hence, offered the defendants the opportunity

to call him as their witness at that time. The court also noted

that it would not permit testimony on the matters already

covered at the evidentiary hearing, that is, matters regarding

the second superceding indictment. At the end of the day, the

defendants pressed the issue and said they wanted to inquire

about the limits and inadequacy of the investigation. The trial

judge said those matters could have been covered on cross-

examination and that this agent played only a limited role in

the investigation, but that he would allow the defendants to

recall Agent Cintron if, after a proffer outside of the jury, he

was convinced counsel was not attempting to reintroduce the

Melendez issue related to the second superceding indictment.

Later in the trial, counsel for Ramos-Cartagena asked

the court to permit Melendez to testify. The defense theory was

that a cursory investigation had been done -- that once a few

pieces of seemingly incriminatory evidence were found, the

authorities concentrated on trying to link what was found in

Ramos-Cartagena's house with the Loomis Fargo robbery. This,

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they contended, evidenced bias by the government, and that bias

was exemplified by Melendez being used by Cintron to obtain the

second superceding indictment. The government responded that

while that argument may have been relevant to the second

superceding indictment, that indictment had been dismissed, and

the argument was not relevant to the charges before the jury.

Defense counsel countered that the testimony of two other

witnesses buttressed their claim that the government had not

adequately investigated the crime, and the government agreed

that Agent Cintron could be brought back so those points could

be pursued. The defendants pressed for permission to call

Melendez as a witness, but the court refused, saying Melendez

had committed perjury. Ramos-Cartagena, Reyes-Hernandez, and

Mojica-Baez claim the district court erred in not allowing them

to call Melendez as a witness.

The district court did not abuse its discretion. As

the trial judge recognized, there was considerable danger in

getting into a peripheral matter that had already been disposed

of -- the second superceding indictment. The probative value of

Melendez's testimony to the defendants' attempt to attack the

government’s investigation was weak, at best. The defendants

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had a number of opportunities to make such an attack, some of

which they took. They had the opportunity to recall agent

Cintron and chose not take it. The trial judge’s ruling,

particularly with regard to a witness already determined to be

a perjurer, was eminently reasonable.

We need not address the government’s additional

argument that the proposed Melendez testimony would be

prohibited under Federal Rule of Evidence 608 as impeachment by

extrinsic evidence.

4. Admission of Tools of the Trade

During the robbery, the gunmen bragged that they were

"professionals." At trial, the government put in certain

physical evidence seized from the defendants' homes on the

theory that the items were the "tools of the trade" of

professional robbers. The evidence included ski masks, bullets,

a blue police emergency light, and police uniforms. There was

no claim by the government that these were used during the

Loomis Fargo robbery.

Reyes-Hernandez, Ramos-Cartagena, and Mojica-Baez claim

the evidence is impermissible character propensity evidence

barred by Federal Rule of Evidence 404(b) and that it should

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have been excluded as overly prejudicial under Federal Rule of

Evidence 403.

There was no error. Disguises are common tools of the

trade and have been found admissible even if not used in the

crime charged. See, e.g., United States v. Candelaria-Silva,

162 F.3d 698, 705 (1st Cir. 1998). There was no unfair

prejudice to the defendants.

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5. Admission of Redacted Post-Arrest Admission of Papo, a Co-

Defendant Not On Trial

Rafael A. Baez-Gonzalez was a charged co-defendant who

was not on trial with these defendants. On May 23, 1997, FBI

agents went to his house and found almost $400,000 hidden on the

property. After he received his Miranda warnings, he signed a

waiver of rights and gave a statement. Baez-Gonzalez's

statement, redacted to remove the names of some of the

defendants, was admitted at trial through the testimony of an

FBI agent. The statement was that one week before the robbery

an individual told Baez-Gonzalez that he (the individual) would

be coming into some large money and asked Baez-Gonzalez whether

he would hold the money for him; and further, that the Friday or

Saturday after the robbery, the individual told Baez-Gonzalez

that the money was from the Loomis Fargo robbery.

Baez-Gonzalez’s redacted statement did not identify any

of the defendants. Other evidence identified Mojica-Baez as the

individual. Specifically, Nevarez-Marrero (the fellow jailmate)

testified that Mojica-Baez had told him that "somebody had taken

from one of his uncles almost half a million dollars, and he was

thinking that his own uncle was squealing on him." Nevarez-

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Marrero further testified that Mojica-Baez had told him that the

money was "[f]rom the holdup" and that he (Mojica-Baez) had

"given it to his uncle for safekeeping." While there was an

overruled objection to Nevarez-Marrero’s statement, there was no

objection to the FBI agent's testimony about Baez-Gonzalez's

statement. A Bruton objection was initially made to the Baez-

Gonzalez statement, see Bruton v. United States, 391 U.S. 123

(1968), but it was withdrawn upon counsel's learning that the

statement was redacted.5 Thus, there was no relevant objection

to the Baez-Gonzalez statement, although the issue is now

pursued on appeal by Mojica-Baez and Cartagena-Merced.

There was no clear theory of admissibility for Baez-

Gonzalez's statement; there is no evidence from the record that

the statement was admitted as a co-conspirator statement, and no

Petrozziello ruling was made as to the statement. See United

States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). But

the defendants did not make these points at trial and so are in

a very weak position to argue them now.

The government urges that if there were any error, it

5 Reyes-Hernandez initially objected on the assumption that the
government was going to seek to introduce the statement as a
declaration against interest.

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was harmless. The defendants say that the claimed error was not

harmless, because if the Baez-Gonzalez statement had not been

admitted, the jury would have found that Nevarez-Marrero’s

statement, which was admissible, was not credible.

If there was any error, it was harmless. Baez-Gonzalez

was Mojica-Baez’s uncle; a huge and unexplained sum of money was

found buried at his home; and, considering the other evidence

that linked Mojica-Baez with the robbery, a jury could

reasonably infer that it came from Mojica-Baez, whether or not

Baez-Gonzalez's statement came in. The inference was given

greater strength by Nevarez-Marrero’s recounting of Mojica-

Baez’s own words.

6. Admission of Co-Conspirators' Statements

Mojica-Baez argues that it was a Petrozziello violation

for the district court to allow Diaz-Nevarro to testify

regarding statements made by co-conspirators after the robbery

had been committed and to admit the statement Baez-Gonzalez gave

following his arrest. See Petrozziello, 548 F.2d at 23. Baez-

Gonzalez's statement, which was not explicitly admitted as a co-

conspirator statement, was discussed above.

The main attack launched is that Diaz-Nevarro's

-28-
testimony involved statements that were made after the robbery

and, thus, after the conspiracy ended. There is a distinction,

for purposes of the co-conspirator statement exception to the

hearsay rule, between an initial conspiracy to commit a crime

and later actions to conceal the crime. See Grunewald v. United

States, 353 U.S. 391, 399-406 (1957); Krulewitch v. United

States, 336 U.S. 440, 443-44 (1949); United States v. Twitty, 72

F.3d 228, 233-34 (1st Cir. 1995).

Our review of the district court's determination that

the statements were co-conspirator statements is for clear

error. See United States v. Portela, 167 F.3d 687, 703 (1st

Cir.), cert. denied, 120 S. Ct. 273 (1999). The district court

found that, in addition to the robbery, the conspiracy included

the division and hiding of the money, a ruling that is plainly

correct under United States v. Hickey, 596 F.2d 1082, 1089-90

(1st Cir. 1979). It was hardly clear error for the district

court to conclude that the robbers had not divided up all of the

abundant cash by the night of the robbery or even immediately

thereafter, and it is reasonable to conclude that it would have

taken at least a few days to count $5.5 million. The statements

-29-
Diaz-Nevarro recounted were made well within this time frame.6

The district court also admitted the evidence on a

theory that the conspiracy included the concealment of the

crime. The district court found that the conspiracy included

"the use of false identifications by some of the defendants to

hide their true identities and escape detection and punishment."

This ground is much more problematic in light of Krulewitch, 336

U.S. at 443-44, but the other ground suffices to admit the

statements.

We do not reach the government's alternate ground, that

the statements are admissible under Federal Rule of Evidence

6 Diaz-Nevarro testified as to two statements Vega-Coreano made
to her. Vega-Coreano told Diaz-Nevarro on the day of the robbery that
Ramos-Cartagena and Reyes-Hernandez "went to Ponce" (the location of
the robbery), and, when Diaz-Nevarro mentioned news coverage of the
robbery, Vega-Coreano said "it was them." The two Vega-Coreano
statements are attacked as not being in furtherance of the conspiracy;
but they may be understood as an effort by the one woman implicitly to
secure the silence of the other.
Mojica-Baez also challenges Diaz-Nevarro's testimony that,
two days after the robbery, she overheard two of the conspirators
describing to Vega-Coreano how a guard was hit. Mojica-Baez describes
the statement Diaz-Nevarro overheard as coming from Reyes-Hernandez and
Landa-Rivera. Diaz-Nevarro testified, however, that she heard Reyes-
Hernandez making this statement. We assume this is the statement to
which Mojica-Baez raises an objection. We do not decide whether this
conversation was in furtherance of the conspiracy, as, even if it was
error to admit the statement, any error was harmless in light of all
the other testimony Diaz-Nevarro gave.

-30-
807, the residual hearsay exception.

7. Cumulative Evidentiary Errors

The defendants also appear to argue that even if any

error in admitting a particular item of evidence was harmless,

the cumulative effects of the errors denied them a fair trial.

See United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.

1993). Given our rulings on the evidentiary issues and the very

limited number of errors we have deemed harmless, there is

nothing to this argument.

C. Limiting Instructions

Cartagena-Merced says instructions should have been

given limiting to other defendants the testimony of Nevarez-

Marrero, the flight evidence, and the evidence of use of false

identification cards. No such limiting instructions were

sought, and it was hardly plain error, much less an abuse of

discretion, for the district court not to give those

instructions sua sponte.

Cartagena-Merced also seeks to attack the admissibility

of the Diaz-Nevarro testimony and the tools of the trade

evidence, attacks that we have already rejected.

D. Sufficiency of the Evidence

-31-
1. Mojica-Baez

Mojica-Baez's defense theory apparently was that he was

a 19-year-old innocent and that it was his 40-year-old uncle,

Baez-Gonzalez, who was one of the robbers. There was evidence,

though, that Mojica-Baez was at Ramos-Cartagena's house almost

daily during the two weeks preceding the robbery, that he loaded

weapons at the house the day before the robbery, and that, after

the robbery, he embraced Vega-Coreano, saying "We did it. We

did it," or "We won, we won." Mojica-Baez told Nevarez-Marrero

that he (Mojica-Baez) had given his uncle money from the Loomis

Fargo robbery for safekeeping and that he was worried his uncle

was squealing on him. AK-47 ammunition and part of the barrel

of an assault rifle were found in his home. Further, Mojica-

Baez was arrested while traveling from hotel to hotel after the

robbery with Ramos-Cartagena, Reyes-Hernandez, and Vega-Coreano.

The evidence was sufficient.

2. Cartagena-Merced

Cartagena-Merced offered an alibi defense that he was

at a birthday party for his mother the day of the robbery until

some time after 8:00 p.m., and he produced a photograph

allegedly showing him at the party. If he had been at the party

-32-
until at least 8:00 p.m., he could not have been at the robbery.

Close scrutiny of the photo showed Cartagena-Merced was wearing

a watch, and, according to the government's expert, the time on

the watch was either 12:15 or 3:00.7 His false alibi was itself

evidence of guilt.

Cartagena-Merced ultimately premises his insufficiency

argument on the alleged "Limiting Instruction" errors discussed

above. There were no such errors and the argument fails.

Cartagena-Merced was seen at Ramos-Cartagena's house regularly

during the two weeks prior to the robbery; he arrived at the

house just after the robbery with Mojica-Baez (who then embraced

Vega-Coreano and exclaimed that they had been successful); and

FBI agents found a McDonald's bag containing $2,500 hidden in a

mattress and over $1,000 in a box and between the pages of a

magazine at his house. The evidence was sufficient to sustain

the conviction.

7 Cartagena-Merced's expert stated that the watch showed 7:10.
However, both Cartagena-Merced's expert and the government's expert
agreed that the photo from the previous frame on the roll (which was
not of Cartagena-Merced and which, if the photos in fact came from the
same roll, had to have been taken prior to the photo of Cartagena-
Merced) included a watch showing 7:50. Thus, the jury was entitled to
discredit Cartagena-Merced's expert's opinion that Cartagena-Merced's
watch showed 7:10 and to infer that the photo of Cartagena-Merced was
taken at 12:15 or 3:00 some time after the party.

-33-
E. Sentencing

1. Use of Semi-Automatic Assault Weapon

Mojica Baez, Reyes-Hernandez, and Ramos-Cartagena say

that they should not have been sentenced to the mandatory ten

years imprisonment on Count 5 of the indictment for use of a

semiautomatic assault weapon. See 18 U.S.C. § 924(c)(1)(A),

(B). Use of an ordinary firearm results in a sentence of not

less than 5 years imprisonment. See id. § 924(c)(1)(A).

Subsection (B) of the statute provides, in relevant part:

If the firearm possessed by a person convicted of a
violation of this subsection -- (i) is a short-
barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less than
10 years . . . .

Id. § 924(c)(1)(B). A violation of § 924(c)(1) was charged in

the indictment without reference to subsection (B) and without

any reference to the type of weapon used. Reyes-Hernandez made

an objection at sentencing that there was inadequate evidence to

support the conclusion that a semiautomatic assault weapon was

used.

a. Effect of Castillo

After this appeal was briefed, the Supreme Court

-34-
decided that the distinctions in 18 U.S.C. § 924(c)(1) between

types of firearms (which result in different sentences), were

elements of separate crimes and not just sentencing factors.

See Castillo v. United States, 120 S. Ct. 2090, 2091 (2000).

This means that the question of whether a firearm is a

semiautomatic assault weapon must (1) go to the jury, not the

judge, and (2) be proven beyond a reasonable doubt, not by a

preponderance of the evidence, as is true with sentencing

factors. See Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63

(2000) ("Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt."); Sustache-Rivera v. United States, No. 99-

2128, 2000 WL 1015879, at *1 (1st Cir. July 25, 2000). At our

request, counsel filed supplemental briefs on the effect of

Castillo on this case.

The only objections at sentencing regarding the

§ 924(c)(1) conviction did not encompass Castillo's distinction

between sentencing factors and elements.8 Nor were the arguments

8 Although Reyes-Hernandez argues that his objection at
sentencing -- that there was insufficient evidence with regard to the
type of the weapons used -- encompassed Castillo's distinction between

-35-
in the initial briefs on appeal addressed to this point. As a

result, our review of this type of trial error is for plain

error. Plain error review requires four showings: that there

was error; that it was plain; that the error affected

substantial rights; and that the error seriously affected the

fairness, integrity or public reputation of judicial

proceedings. See Johnson v. United States, 520 U.S. 461, 467

(1997); United States v. Olano, 507 U.S. 725, 732 (1993). The

first two criteria are met here; there was error, and it was

plain, at least by the time of argument on the direct appeal.

See Johnson, 520 U.S. at 468.

The "affecting substantial rights test" for trial error

means that the error must have caused prejudice. See Olano, 507

U.S. at 734. However, unlike the harmless error test, in which

the government bears the burden of showing that an error did not

result in any prejudice, the defendant bears the burden of

showing prejudice under the plain error test. See id. Thus,

the "affecting substantial rights" prong of the test is not

satisfied simply by showing that an element of an offense was

a sentencing factor and an element of the crime, that objection clearly
did not address the point.

-36-
not submitted to the jury. See United States v. Pérez-Montañez,

202 F.3d 434, 442 (1st Cir. 2000), petition for cert. filed on

July 5, 2000 (U.S. No. 00-5096); see also Neder v. United

States, 527 U.S. 1, 15 (1999) (holding that failure to submit an

element to the jury is trial error, subject to harmless error

review). Instead, to show prejudice, the defendants must

demonstrate that the error "affected the outcome of the district

court proceedings." United States v. Colón-Muñoz, 192 F.3d 210,

222 (1st Cir. 1999) (internal quotation marks and citation

omitted), cert. denied, 120 S. Ct. 1559 (2000).

The trial error alleged under Castillo is the failure

to have submitted the question of whether the robbers used a

semiautomatic assault weapon to the jury. We ask, then, what

prospects there were that submission of the question to the jury

would have resulted in a different outcome, keeping in mind the

higher standard of proof required before a jury. None of the

defendants' briefs address the key question: whether, given the

evidence actually introduced as to the weapons used, there was

any prejudice from the failure to have submitted the question to

the jury. Rather than treat the issue as waived, we address it.

One of the Loomis Fargo guards testified at trial that one of

-37-
the robbers was carrying an AK-47. The robbers twice told the

guards they had AK-47 rifles, and AK-47 rounds were found at

some of the defendants' homes. One of the robbers claimed that

his weapon could shoot through cement, and an FBI firearms

instructor testified that an AK-47 round is capable of

penetrating cement. The FBI firearms instructor also testified

that the weapon in the photograph of Ramos-Cartagena was an AK-

47. He further testified that an AK-47 can operate either as a

semiautomatic or as a fully automatic weapon. In light of this

evidence, the defendants have not met their burden of showing

prejudice, nor would we, applying the fourth Olano factor, find

any miscarriage of justice.

The defendants' main argument, though, is based upon

the fact that the indictment only charged them with a violation

of § 924(c)(1) for use of a firearm during the robbery, but did

not specifically charge them with a violation under subsection

(B) of the statute or state that a semiautomatic assault weapon

was used in the robbery. They urge, therefore, that this is not

an instance merely of trial error. This requires, they say,

that their convictions for the § 924(c)(1) violation be

-38-
reversed,9 because such indictment errors are not subject to

harmless or plain error analysis. In other words, they claim

that the indictment was fatally deficient, and that this, per

se, requires reversal. They do not argue that the indictment

failed to provide them with fair notice of the charge against

them.

Mojica-Baez cites to some recent cases for the

proposition that omission of an element from an indictment is

never harmless error. He relies on United States v. Du Bo, 186

F.3d 1177 (9th Cir. 1999) (reversing conviction and dismissing

indictment for failure to include element of the charged

offense), but that case involved a timely pre-trial challenge to

9 Defendants' choice of remedy is overreaching. There is no
question that the indictment fairly and adequately charged them with
the basic "use of a firearm" offense under § 924(c)(1)(A). And there
is no question that the government proved the elements of that offense
beyond a reasonable doubt and that the elements were found by the jury.
In fact, there were no objections to the sentencing for the firearm
offense until the government requested that the court sentence the
defendants to the longer term pursuant to the semiautomatic assault
weapon subsection of the statute, and the objections went only to the
sufficiency of the evidence.
As a result, the only possible relief for the defendants
would be a remand for reindictment, see United States v. Spinner, 180
F.3d 514, 517 (3rd Cir. 1999), or resentencing, see United States v.
Rudisill, No. 99-4588, 2000 WL 620314, at *1 (4th Cir. May 15, 2000)
(per curiam) (unpublished); United States v. Matthews, 178 F.3d 295,
301 (5th Cir.), cert. denied, 120 S. Ct. 359 (1999). We do not decide
whether the proper remedy would be remanding for reindictment or for
resentencing.

-39-
a deficient indictment. See id. at 1179. The case expressly

limits its analysis to timely challenges. See id. at 1180 n.3.

In a later unpublished opinion, that court declined to abandon

harmless error analysis where the claim was not timely made at

or before trial. See United States v. Woodruff, No. 98-10358,

1999 WL 776213, at **1 n.5 (9th Cir. Sept. 29, 1999)

(unpublished), cert. denied, 120 S. Ct. 2202 (2000). Closer to

defendants' mark is the Tenth Circuit's recent decision in

United States v. Prentiss, 206 F.3d 960 (10th Cir. 2000),

vacating a conviction based on a post-conviction challenge to an

indictment that had failed to include an element of the crime

charged.10 See id. at 966. The court described the indictment's

failure to include all of the essential elements of the offense

and the indictment's lack of other language that would have

remedied the omission as a "fundamental jurisdictional defect

that is not subject to harmless error analysis." Id. at 975.

Prentiss was decided over an argument in dissent that the

decision was inconsistent with Neder. See Prentiss, 206 F.3d at

10 It is not clear from the Prentiss opinion whether the court
vacated the conviction or reversed the conviction. The court simply
stated that it was vacating the conviction and remanding for further
proceedings, but in the following sentence it stated that it was
reversing the conviction. See Prentiss, 206 F.3d at 977.

-40-
978-79 (Baldock, J., dissenting). The majority thought Neder

was inapplicable, primarily because Neder involved a failure to

submit an element of an offense to a petit jury rather than to

a grand jury. See Prentiss, 206 F.3d at 977 n.14. Furthermore,

the Third Circuit vacated a guilty plea in United States v.

Spinner, 180 F.3d 514 (3rd Cir. 1999), remanding so that the

defendant could be reindicted where the original indictment had

failed to allege the interstate commerce element of the crime.

See id. at 517. Spinner did not mention Neder and was concerned

with an element that went to the constitutionally required basis

for federal jurisdiction. In addition, in United States v.

Rudisill, No. 99-4588, 2000 WL 620314 (4th Cir. May 15, 2000)

(unpublished), the court vacated a sentence where the indictment

had not referenced the statutory section. See id. at *1.

Rudisill also did not discuss Neder.11

We accept as true two general propositions. Those

11 These cases may be part of a renewed interest in the role of
the grand jury as a bulwark against prosecutorial abuse. See generally
National Ass'n of Criminal Defense Lawyers, Federal Grand Jury Reform
Report & 'Bill of Rights' (2000). As the Du Bo court noted, "[a]t
common law, 'the most valuable function of the grand jury was . . . to
stand between the prosecutor and the accused, and to determine whether
the charge was founded upon credible testimony . . . ." Du Bo, 186
F.3d at 1179 (quoting Hale v. Henkel, 201 U.S. 43, 59 (1906)).

-41-
propositions do not mean, though, that the defendants' argument

is sound. The first proposition is that an objection that an

indictment fails to state an essential element of an offense

"shall be noticed by the court at any time during the pendency

of the proceedings." Fed. R. Crim. P. 12(b)(2). This means

that the defendant may raise the objection for the first time on

appeal or that this court may raise the issue sua sponte. See

United States v. Forbes, 16 F.3d 1294, 1297 (1st Cir. 1994);

United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973).

The second proposition is that a statutory citation standing

alone in an indictment does not excuse the government's failure

to set forth each of the elements of an offense. See Forbes, 16

F.3d at 1297; United States v. McLennan, 672 F.2d 239, 243 (1st

Cir. 1982). An indictment may incorporate the words of a

statute to set forth the offense, but the statutory language

"must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific

offence, coming under the general description, with which he is

charged." Hamling v. United States, 418 U.S. 87, 117-18 (1974)

(quoting United States v. Hess, 124 U.S. 483, 487 (1888))

(internal quotation marks omitted). We do not decide here

-42-
whether the indictment was defective or inadequate for its

failure to do more than refer to the "use of a firearm" statute

in the context of accusing defendants of using a firearm in the

robbery, see id. (stating that, to be adequate, indictment must

fairly inform a defendant of the charges against him and enable

him to assert a double jeopardy defense to future prosecution),

but we take it that there is an argument that it was inadequate.

The government's brief seems to assume, without analysis, that

the indictment was inadequate.

The argument that the sentences should be vacated is

premised upon the distinction between "trial error," which is

reviewed for prejudice (discussed above), and the more

fundamental "structural error," which is per se prejudicial.

Certain categories of error interfere with such basic and

fundamental constitutional protections that they go to the

structure of our criminal law system. These "structural errors"

require that convictions, or sentences, be set aside without any

examination of prejudice because, among other things, it would

be well-nigh impossible to determine the amount of harm. The

harm caused by these types of error is surely great, though, as

when a defendant is deprived of counsel, see Gideon v.

-43-
Wainwright, 372 U.S. 335 (1963), or when the trial judge is

biased, see Tumey v. Ohio, 273 U.S. 510 (1927). Other errors

have been designated as structural in order to vindicate

compelling constitutional policies, such as freeing the trial

and grand jury processes from state-sponsored discrimination in

the selection of jurors, see Vasquez v. Hillery, 474 U.S. 254

(1986); preserving open and public trials, see Waller v.

Georgia, 467 U.S. 39 (1984); and reinforcing the core of the

principle of proof beyond a reasonable doubt in criminal cases,

see Sullivan v. Louisiana, 508 U.S. 275 (1993).

The error in this case is not of that dimension. No

interest in safeguarding fair trials or vindicating compelling

constitutional policies would be served by classifying the error

here as structural. Nor do we think the integrity of the

judicial system is implicated. See Johnson, 520 U.S. at 469-70.

The reason the indictment in this case did not specify that a

semiautomatic assault weapon or AK-47 had been used in the

robbery was that circuit precedent at the time did not require

it. After the defendants in this case were convicted, but prior

to their sentencing, we decided that § 924(c)(1)'s subsections

defined sentencing factors and not elements of separate

-44-
offenses. See United States v. Shea, 150 F.3d 44, 51 (1st

Cir.), cert. denied, 525 U.S. 1030 (1998). It is one thing to

vacate a conviction or sentence where the prosecutor failed to

indict in accordance with the current state of the law. It is

quite another thing to vacate a conviction or sentence based on

an indictment that was entirely proper at the time. Neither

the prosecution nor defense counsel in this case anticipated

that the Supreme Court would rule as it did in Castillo.

There are some serious harms, to be sure, that can

emerge from flawed indictments. The most serious may be when a

defendant is without fair notice of the charges against him.

See United States v. Murphy, 762 F.2d 1151, 1155 (1st Cir.

1985). The defendants have not argued on appeal that they

lacked fair notice. Moreover, when the government requested

that the defendants be sentenced pursuant to the semiautomatic

assault weapon subsection, the defendants made no claim of lack

of fair notice. The § 924(c)(1) charge against the defendants

put them on notice that they could be sentenced for using a

semiautomatic assault weapon (pursuant to § 924(c)(1)(B)) if the

judge found, by a preponderance of the evidence, that such a

-45-
weapon had been used.12 We see no unfairness to the defendants

in terms of notice.

We think we are compelled by the Supreme Court's

decision in Neder to subject the indictment error in this case

to plain error review. In Neder the court held that a jury

instruction "that omits an element of the offense does not

necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence" and is,

therefore, subject to harmless error review. Neder, 527 U.S. at

9. This is so even though the Fifth Amendment requires the

government to prove every element of a criminal offense beyond

12 Whether the use of a semiautomatic assault weapon pursuant
to subsection (B) of § 924(c)(1) was an element of a separate offense
or a sentencing factor had not been decided in this circuit at the time
of the defendants' trial. Defendants had a great incentive to raise
the issue because of the less rigorous standard of proof upon which a
judge could make the finding at sentencing. However, we had already
decided, in an analogous context, that the subsections to the federal
carjacking statute that provide for longer sentences where a victim
suffers bodily injury were sentencing factors, not elements of an
independent offense. See United States v. Rivera-Gomez, 67 F.3d 993,
1000 (1st Cir. 1995). Other circuits agreed. See, e.g., United States
v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); United States v. Williams,
51 F.3d 1004, 1009 (11th Cir. 1995). These decisions were later
overturned in Jones v. United States, 526 U.S. 227, 251-52 (1999).
With regard to § 924(c)(1)'s subsections, at the time of defendants'
trial, there was a split among the circuits on the "sentencing factor
vs. element" issue. Compare United States v. Branch, 91 F.3d 699, 737-
41 (5th Cir. 1996) (sentencing factor), with United States v. Alerta,
96 F.3d 1230, 1235 (9th Cir. 1996) (element).

-46-
a reasonable doubt, see In re Winship, 397 U.S. 358, 364 (1970),

and the Sixth Amendment requires that a jury, and not a judge,

find that the elements of the offense have been proven, see

Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). It is true, as

the majority in Prentiss says, that Neder was explicitly

concerned with the failure to submit an element of an offense to

the petit jury at trial and not with the failure to present an

element to the grand jury to secure an indictment. See

Prentiss, 206 F.3d at 977 n.14. But we do not think that

distinction is significant where the indictment provided the

defendant with fair notice of the charges against him. The

Neder court explained that "most constitutional errors can be

harmless." Neder, 527 U.S. at 8 (internal quotation marks and

citation omitted).

Prior to Neder, the Court had recognized other

constitutional errors that can be harmless. See, e.g., Arizona

v. Fulminante, 499 U.S. 279, 310 (1991) (erroneous admission of

evidence in violation of Fifth Amendment guarantee against self-

incrimination may be harmless); Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986) (erroneous exclusion of evidence in

violation of defendant's Sixth Amendment right to confront

-47-
witnesses may be harmless). Against this background, we see no

reason why harmless error review should not apply to the failure

to include an element in an indictment that otherwise provided

the defendants with fair notice of the charges against them.

Cf. United States v. Jackson, 214 F.3d 687, 690 (6th Cir. 2000)

(suggesting that harmless error analysis might be appropriate

where an element of an offense was not specifically included in

the indictment or submitted to the jury).

This approach is consistent with circuit law concerning

other defects in indictments. See, e.g., United States v.

Yefsky, 994 F.2d 885, 894 (1st Cir. 1993) (applying harmless

error review where indictment did not give the defendant

adequate notice of the charges against him, but where adequate

notice had been given prior to trial). Even where a defendant

alleges that there was misconduct before the grand jury, the

harmless error test applies. See United States v. Mechanik, 475

U.S. 66, 71-72 (1986); see also United States v. Lamela, 942

F.2d 100, 104 n.7 (1st Cir. 1991).

The evidence as to use of semiautomatic assault weapons

was, at it happens, presented to the petit jury (we are doubtful

that much rests on it being presented to the jury as opposed to

-48-
the judge). That evidence may well have also been presented to

the grand jury; we do not know. There is no question that the

petit jury in this case would have found that the defendants

used at least one AK-47. To paraphrase Neder, the indictment's

failure to charge the defendants under the semiautomatic assault

weapon subsection of the statute did not necessarily render the

indictment unfair or make it an unreliable vehicle with which to

commence the proceedings in this case. See Neder, 527 U.S. at

9. We reject the argument that Castillo requires the sentences

be vacated based on an error in the indictment.

b. Sufficiency of the Evidence

Viewing the issue not as a Castillo issue but simply

as an issue of whether the trial judge's determination was

sufficiently supported by the record, we find there was no

error. The 10-year sentences under § 924(c)(1)(B) for Ramos-

Cartagena, Cartagena-Merced, Reyes-Hernandez, and Mojica-Baez

are affirmed.

2. Landa-Rivera's Sentencing

Landa-Rivera was convicted of being an accessory after

the fact to the robbery, in violation of 18 U.S.C. §§ 3,

2113(a). He makes two arguments on appeal. First he says, and

-49-
the government agrees, that while he was charged and convicted

for being an accessory to a simple robbery, see 18 U.S.C.

§ 2113(a), he was erroneously sentenced as though he were an

accessory to an armed robbery, see 18 U.S.C. § 2113(d). The

government asks that this aspect of the sentence be remanded for

resentencing, and we do so.

Second, Landa-Rivera argues that the district court

erred in calculating his total offense level. We review the

applicability and interpretation of a sentencing guideline de

novo, but we review the district court's factual findings at

sentencing only for clear error. See United States v. Cali, 87

F.3d 571, 575 (1st Cir. 1996). Landa-Rivera makes two separate

claims relating to the calculation of his offense level. First,

he claims the court incorrectly increased his offense level for

"specific offense characteristics that were known, or reasonably

should have been known, by the defendant."13 U.S.S.G. § 2X3.1,

application note 1. According to Landa-Rivera, since being an

13 Specifically, he asserts error for the following increases:
five levels because of the use of firearms, under U.S.S.G.
§ 2B3.1(b)(2)(C); three levels because the guards were restrained and
firearms were taken from them, under U.S.S.G. § 2B3.1(b)(4)(B), (b)(6);
and two levels because the guards sustained bodily injuries, under
U.S.S.G. § 2B3.1(b)(3)(A).

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accessory after the fact is not itself a crime of violence,

sentencing enhancements related to the violent nature of the

robbery in this case should not apply to him. He is incorrect.

The relevant Guidelines sections make clear that the specific

characteristics of the underlying offense constitute relevant

conduct for the purpose of calculating an accessory sentence.

Application note 1 of § 2X3.1 (the accessory after the fact

guideline) references § 1B1.3, application note 10, for purposes

of computing the total offense level. That note, in turn,

states, "In the case of . . . accessory after the fact, the

conduct for which the defendant is accountable includes all

conduct relevant to determining the offense level for the

underlying offense that was known, or reasonably should have

been known, by the defendant." U.S.S.G. § 1B1.3, application

note 10 (emphasis added). As a factual matter, there was no

clear error in finding that Landa-Rivera knew or should have

known of these characteristics of the robbery. In fact, the

record shows that Landa-Rivera recounted the details of the

robbery to Nevarez-Marrero and Diaz-Nevarro.

Landa-Rivera's second argument is that there was

insufficient evidence to support a finding that he knew or

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should have known that the property of a financial institution

was taken, see U.S.S.G. § 2B3.1(b)(1), and that the total losses

were over $5 million, see U.S.S.G. § 2B3.1(b)(7)(H). There was

no error. Landa-Rivera told Nevarez-Marrero that over $5

million had been stolen; there was ample evidence that much of

the money came from banks -- Banco Popular and Banco Santander

in particular; and it was reasonable for the trial judge to

conclude that Landa-Rivera knew or should have known this

information.

III.

The convictions and sentences of defendants Mojica-

Baez, Reyes-Hernandez, Cartagena-Merced, and Ramos-Cartagena are

affirmed. Defendant Landa-Rivera's conviction is affirmed, but

his sentence is vacated and remanded for resentencing in

accordance with this opinion.

So ordered.

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