         Case: 12-11119   Date Filed: 08/28/2013   Page: 1 of 13


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-11119
                     ________________________

               D.C. Docket Nos. 9:11-cr-80078-DMM-2,
                       9:11-cr-80078-DMM-1



UNITED STATES OF AMERICA,

                   Plaintiff/Appellee,

versus

WINSKY MONDESTIN,
KERBY AURELHOMME,

                   Defendants/Appellants.

                     ________________________

             Appeals from the United States District Court
                 for the Southern District of Florida
                    ________________________

                          (August 28, 2013)
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Before TJOFLAT and WILSON, Circuit Judges, and COOGLER, * District Judge.

PER CURIAM:

       Winsky Mondestin and Kerby Aurelhomme each appeal their convictions

and total 300-month sentences following a joint trial. Both defendants were

convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §

1951 (Count One); Hobbs Act robbery (Count Two); using, carrying, brandishing,

or discharging a firearm in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count Three); and making false statements of material fact to

investigators, in violation of 18 U.S.C. § 1001(a)(2) (Counts Four through Six).

For the reasons that follow, we reverse the convictions with regard to Count Three.

We find the challenges to the remaining counts without merit and therefore do not

address them in this opinion.

I.     BACKGROUND

       Co-defendants Mondestin and Aurelhomme were indicted on a six-count

superseding indictment alleging they were responsible for a July 12, 2006 robbery

of an armored van in Boca Raton, Florida. Aurelhomme was employed by the

armored van company and was the assigned driver of the van on the morning of the

robbery. Gustavo Sorzano was the other guard on duty at the time.



       *
       Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
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       On the morning of the robbery, Aurelhomme and Sorzano received a

manifest that listed several automatic teller machines (“ATMs”) they were

responsible for servicing that day. After they headed out, Sorzano reversed the

order of their stops due to traffic, and he instructed Aurelhomme to begin with the

ATM at the Cumberland Farms convenience store and gas station. The two arrived

at Cumberland Farms shortly after nine o’clock that morning. Upon their arrival,

Sorzano went inside the store to service the ATM while Aurelhomme waited in the

van.

       Sorzano spent approximately thirty minutes servicing the ATM inside

Cumberland Farms. As he was leaving the store, an armed assailant attacked

Sorzano and threw him into the back of the van. Sorzano yelled for Aurelhomme to

cut off the engine and call the police, but instead Aurelhomme remained silent and

began driving.1 Sorzano and the assailant struggled in the back of the van as it was

driving away. During the struggle the assailant’s gun discharged, striking Sorzano

in the ankle. A few minutes later, the van stopped at a nearby apartment complex

and the assailant began unloading the bags of money. Sorzano could not see

anyone outside the van helping unload the money, but he was aware of another car.

Sorzano later testified that he believed the attacker had a partner considering how


       1
        Aurelhomme later explained his behavior by claiming a second robber was holding him
at gunpoint in the front seat.

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quickly he unloaded the twenty bags of money into the getaway car and drove

away. Once the assailant and the car were gone, Sorzano called 911. Sorzano was

then taken to the hospital, where he was informed by doctors that he had suffered a

heart attack as a result of the attack.

      Investigators began suspecting Aurelhomme’s involvement in the robbery

based on his unusual behavior and suspicious responses in a post-robbery

interview. For example, Aurelhomme initially told investigators that the robbers

had taken his cell phone. However, when investigators requested the phone’s

number so they could track it, Aurelhomme claimed he could not remember the

number as he had just obtained the phone the previous evening at a night club.

Aurelhomme initially could not provide names of people who he had called or who

might know his number, and the numbers he eventually provided were inoperable.

Aurelhomme’s phone number was later established through various means,

including a statement and phone records from Elier Cruz, Aurelhomme’s

employer, who told investigators that Aurelhomme had called him from his usual

phone number when he arrived at work on the morning of the robbery.

       Mondestin was implicated in the crime through cell phone records, which

showed twenty-three phone calls between Aurelhomme and Mondestin on the

morning of the robbery, nine of which were made while Sorzano was servicing the

ATM. Additionally, cell tower analysis showed that Mondestin and Aurelhomme’s


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phones were using the same cellular tower and the same sector at various time

intervals during and preceding the robbery. Like Aurelhomme, Mondestin acted

suspiciously when questioned by authorities. For example, Mondestin denied

ownership of the phone number investigators had linked to him, claiming instead

that it belonged to “Johnny.” Yet, upon further inquiry, Mondestin was unable to

provide any information to establish “Johnny’s” identity. Further, Mondestin

initially claimed another phone number belonged to him, but later backtracked and

told investigators the phone had been dropped in water and was no longer

operable. Although investigators determined that Mondestin was a co-conspirator

in the robbery, they did not believe he was the armed assailant that attacked and

shot Sorzano. Instead, investigators were led to believe that James Theoc,

Mondestin’s older brother, was the armed assailant. Theoc died of natural causes

before this case went to trial.

      At the conclusion of the trial, but before closing arguments, the court

conferred with counsel regarding jury instructions. With respect to Count Three—

which charged the defendants with using a firearm in relation to a crime of

violence—the government sought to establish accomplice liability since neither

defendant individually carried a weapon. Two theories were discussed: (1) an

aiding and abetting theory, requiring the government prove the defendant knew

that a firearm was being used by a co-conspirator and that the defendant committed


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some act in furtherance of the offense; 2 and (2) a Pinkerton 3 theory of liability,

which requires only that the use of the firearm was reasonably foreseeable. The

government requested an instruction under both theories, but the district court

denied the request for a Pinkerton instruction. The parties then argued their

theories of the case to the jury with the understanding that the jury would be

instructed only on aiding and abetting.

       After closing arguments, the district court instructed the jury on the indicted

crimes, including the 18 U.S.C. § 924(c)(1)(A) charge in Count Three. Then,

consistent with its representation to the parties, the court instructed the jury as

follows:

              It is possible to prove a defendant guilty of a crime even
       without evidence that the defendant personally performed every act
       charged. . . . .
              [A] defendant aids and abets a person if the defendant
       intentionally joins with the person to commit a crime.
              A defendant is criminally responsible for the acts of another
       person if the defendant aids and abets the other person.
       ....
              But finding the defendant is criminally responsible for the acts
       of another person requires proof that the defendant intentionally
       associated with or participated in the crime, not just proof that the
       2
         To prove aiding and abetting a § 924(c) offense, the government must show that the
substantive offense of carrying or using a firearm in relation to a crime of violence was
committed, “that the defendant associated himself with the criminal venture, and that he
committed some act which furthered the crime.” United States v. Hamblin, 911 F.2d 551, 557
(11th Cir. 1990). Additionally, the government must present evidence proving that defendant had
the “knowledge required to convict him under section 924(c).” Id. at 558. See also United States
v. Thomas, 987 F.2d 697, 702 (11th Cir. 1993).
       3
           Pinkerton v. United States, 328 U.S. 640, 66 S. Ct 1180 (1946).

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      defendant was simply present at the scene of the crime or knew about
      it.

      During deliberations, the jurors sent a note to the court with three questions

regarding the legal standard applicable to Count Three’s firearm charge:

      Question 1: Does Count 3 mean the defendants themselves have to
                  possess the firearm to be found guilty of the charge?
      Question 2: If the defendants were aware that the firearm was to be
                  used in the crime, they are guilty of Count 3?
      Question 3: Does it even matter if the defendants had knowledge of a
                  firearm to be used?

The district court sought input from the parties on how to respond. Counsel for the

government suggested the court refer the jurors back to the previous instruction on

aiding and abetting, “especially in light [of] the fact that the Pinkerton charge was

not given.” The attorneys for both defendants similarly suggested the court simply

refer the jury to the original instruction.

      Instead of following the recommendations from counsel, the district court

formulated the following response:

      1.     A person does not have to personally possess the firearm to be
             guilty of Count Three.
      2.     A person can be found guilty of Count Three if that person aids
             and abets a person who uses the firearm.
      3.     A co-conspirator can be found guilty of Count Three if it is
             reasonably foreseeable that another conspirator would use the
             gun in connection with the crime.

Both defendants objected to the proposed supplemental instruction, again insisting

the court simply refer to its previous charge. The court, however, overruled their


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objections and sent a note to the jury with the supplemental instruction as

described to the parties.

      After deliberating for approximately four more hours, the jury returned a

verdict finding both Aurelhomme and Mondestin guilty of all counts for which

they were charged.

II.   DISCUSSION

      In this consolidated appeal, Aurelhomme and Mondestin have challenged,

on various grounds, all five counts for which they were convicted. After

thoroughly weighing each argument presented, we are only persuaded by the

defendants’ arguments with respect to their convictions under Count Three. The

convictions on all other counts are due to be affirmed.

      Defendants argue that their convictions under § 924(c)(1)(A) are due to be

reversed because the district court abused its discretion when it responded to the

jury’s question with language describing a Pinkerton theory of liability, especially

in light of the fact that the court previously declined to give a Pinkerton instruction

in its initial charge to the jury. We review a district court’s response to a jury

question for an abuse of discretion. United States v. Lopez, 590 F.3d 1238, 1247

(11th Cir. 2009). It may be appropriate in some circumstances for a district court to

expand upon an initial instruction when a jury question arises. See Bollenbach v.

United States, 326 U.S. 607, 612–13, 66 S. Ct 402, 405 (1946) (“When a jury


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makes explicit its difficulties a trial judge should clear them away with concrete

accuracy.”). But while the district court enjoys “considerable discretion regarding

the extent and character of supplemental jury instructions, it does not have

discretion to misstate the law or confuse the jury.” Lopez, 590 F.3d at 1247–48

(citing United States v. Sanfilippo, 581 F.2d 1152, 1154 (5th Cir. 1978) (per

curiam)). Further, the court may not change the original instruction in a manner

that prejudices the defendant. Lopez, 590 F.3d at 1252–53. “Such prejudice occurs

when the change in the instructions is substantial, when the instructions repudiate

counsel’s arguments, or when the instructions impair the effectiveness of those

arguments.” Id. at 1253 (quoting United States v. Descent, 292 F.3d 703, 707 (11th

Cir. 2002) (per curiam)).

      In Lopez, this Court was confronted with a defendant who was charged with

conspiring to encourage or induce an alien to unlawfully enter the United States in

violation of 8 U.S.C. § 1324(a)(1)(A)(iv). Id. at 1243. During the charge

conference, the government asked the district court to provide the jury with

dictionary definitions for two terms— “encourage” and “induce”—which were

otherwise undefined in the statute. Id. at 1246. The defendant objected and the

district court declined the requested instruction, instead allowing the parties to

argue their positions on the common meanings of the terms during closing

arguments. Id. However, the jurors subsequently sent a note to the court asking


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whether certain verbal or nonverbal communication was necessary for the

defendant’s conduct to be deemed encouragement. Id. In response, the district

court, over the defendant’s objection, provided the dictionary definitions it had

previously declined to give. Id. at 1247. The jury ultimately returned a verdict

finding the defendant guilty. Id.

       On appeal, the defendant argued that the district court’s supplemental

instruction violated Federal Rule of Criminal Procedure 30 because the court

reversed its earlier decision not to define the statutory terms. 4 Lopez, 590 F.3d at

1252–53. This Court rejected the defendant’s argument, holding instead that the

district court’s decision not to initially define the terms did not preclude it from

expanding upon its instructions in response to the jury’s question. Id. at 1253.

Moreover, we concluded that there was no prejudice to the defendant because it

was clear he would have made an identical argument to the jury regardless of

whether the terms were defined in the initial instruction. Id. at 1253–54.

       This case presents a markedly different situation from Lopez as there is

prejudice to Mondestin and Aurelhomme resulting from the supplemental

instruction. A defendant may be prejudiced by a supplemental instruction when the

instruction substantially changes the initial jury charge. See Descent, 292 F.3d at

       4
        Federal Rule of Criminal Procedure 30 requires a district court, when requested, to
inform counsel of its proposed action upon requested jury instructions prior to closing
arguments. Fed. R. Crim. P. 30.

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707 (stating that prejudice may be found “when the change in the instructions is

substantial”). The district court’s supplemental instruction in Lopez did not present

such a “substantial” change, but rather, simply clarified the meaning of a term for

which the court had previously left undefined. In contrast, here the district court’s

response provided an entirely new theory under which the jury could find the

defendants guilty of the offense charged. Even more, the Pinkerton “reasonably

foreseeable” test described in the supplemental instruction established a

significantly lower standard for culpability than the knowledge-based “aiding and

abetting” theory upon which the jury was first instructed.

       There are several problems that arise when a court fundamentally changes

the jury instruction in response to a question raised during deliberations. For one, it

has the potential to confuse the jurors, leaving them uncertain of which standard to

apply. Furthermore, such a change in the instruction deprives the defendants of the

opportunity to argue their case to the jury, especially with regard to the added

theory of liability.

       The government contends that there was no prejudice here because the

defendants would have argued their case the same way even if they had known the

district court intended to give a Pinkerton instruction. In support of this argument,

the government points to Aurelhomme’s trial strategy of arguing his complete

innocence of any involvement in the robbery. We cannot accept this reasoning as


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this Court is not in a position to speculate about what arguments the defendants

would or would not have made if they were confronted with a substantially

different jury instruction. Criminal defendants regularly appeal to the jury in the

form of alternative arguments, and there is no reason to believe the defendants in

this case would not have done the same. For example, Aurelhomme could well

have maintained his innocence, but also argued in the alternative that even if the

jury disbelieves him they should nonetheless find that it was not reasonably

foreseeable that the other robber would carry a gun. Indeed, the defendants have

made a similar argument in this appeal, contending that there was insufficient

evidence at trial to support a § 924(c)(1)(A) conviction based upon a Pinkerton

theory of liability.

       This Court cannot declare with certainty what the defendants would have

argued to the jury if they had known the Pinkerton charge was going to be

provided, nor can we predict how the jury would have responded to such an

argument. Nonetheless, the defendants should have been given the opportunity to

argue their case with knowledge of which theory the district court was going to

include in its instructions to the jury. Because they were not given such an

opportunity, the defendants’ Count Three convictions must be reversed.5



       5
        We acknowledge the Supreme Court’s recent decision in Alleyne v. United States,
__U.S. __, 133 S. Ct. 2151 (2013), and its potential application to the jury instruction with
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III.   CONCLUSION

       The defendants’ convictions under Count Three for using, carrying,

brandishing, or discharging a firearm in relation to a crime of violence in violation

of 18 U.S.C. § 924(c)(1)(A) are reversed. The convictions under all other counts

are affirmed; however, the defendants’ sentences are vacated pending the

resolution of Count Three. This matter is remanded to the district court for further

proceedings consistent with this opinion.

       AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.




respect to the § 924(c) charge. However, because we reverse Count Three on other grounds, we
do not address Alleyne in this opinion.

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