           United States Court of Appeals
                      For the First Circuit

No. 14-2068

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                     LUIS ÁNGEL MANSO-CEPEDA,

                       Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO
          [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before
                  Torruella, Hawkins,* and Barron,
                          Circuit Judges.


     Víctor González-Bothwell, Assistant Federal Public Defender,
with whom Eric A. Vos, Federal Public Defender, and Vivianne M.
Marrero-Torres, Assistant Federal Public Defender, were on brief,
for appellant.
     Nicholas Warren Cannon, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Carmen M. Márquez-Marín, Assistant United
States Attorney, were on brief, for appellee.


                         January 20, 2016




*   Of the Ninth Circuit, sitting by designation.
             TORRUELLA, Circuit Judge.       Following a jury trial, Luis

Ángel Manso-Cepeda ("Manso") was convicted for aiding and abetting

a convicted felon, Lisander Casillas-Sánchez ("Casillas"), in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

2.   He directly appeals the district court's denial of his motion

for acquittal under Rule 29 of the Federal Rules of Criminal

Procedure.        He asserts that the evidence was insufficient to

support     his    conviction   in   light   of   the   advance   knowledge

requirement for aiders and abettors articulated in Rosemond v.

United States, ___ U.S. ___, 134 S. Ct. 1240 (2014).               For the

reasons discussed herein, we affirm.

                                      I.

             We recite the facts in the light most favorable to the

prosecution.       United States v. Ofray-Campos, 534 F.3d 1, 11 (1st

Cir. 2008).       At about 11:40 p.m., on the evening of January 26,

2014, Officer Onil Tejeda-Jiménez ("Tejeda") was patrolling in his

police car in the El Hobo and Honduras sectors of Loíza, Puerto

Rico. Sergeant Gadiel Bonilla-Álamo ("Bonilla") sat as a passenger

in Tejeda's car. At that time, Tejeda was accompanied by two other

patrol cars, one of which was driven by Officer José Cruz-Cervera

("Cruz").

             Tejeda observed a gray Mazda Protegé (the "Mazda") with

windows that appeared to be tinted beyond the level permitted under

Puerto Rico law traveling in the opposite direction.                 Tejeda


                                     -2-
attempted to initiate a traffic stop, turning on his vehicle's

rotating lights and sirens and motioning for the vehicle to halt

by sticking his hand out the driver's side window.   The Mazda did

not comply, instead passing Tejeda.

          When Cruz saw that the Mazda had failed to obey Tejeda,

he turned on his vehicle's rotating lights and moved into the

Mazda's lane to block the car.   The Mazda drove onto the sidewalk

to avoid Cruz's vehicle and continued driving away from the patrol

cars.   The officers immediately pursued the Mazda, with Cruz

following Tejeda and Bonilla.

          The Mazda turned onto another street and briefly stopped

during the chase.    Tejeda and Bonilla observed one of the rear

passenger doors open.   Tejeda, who was positioned directly behind

the Mazda, observed an individual (later identified as Casillas)

throw a firearm onto the grass alongside the road.   The Mazda then

accelerated "[a]s fast as it could" away from Tejeda and Bonilla.

At that moment, Cruz, who was somewhat behind the other two

vehicles, arrived at the scene, and Bonilla signaled for Cruz to

continue following the Mazda.

          Tejeda and Bonilla remained at the scene where the Mazda

had stopped.   Tejeda retrieved the gun, and "since it [was] quite

large," placed it in the rear seat of his car.       At the trial,

expert witness Julio Vélez identified the firearm as a Winchester

1200 pump-action shotgun, which typically has a barrel that is


                                 -3-
between twenty-six and twenty-eight inches.      The gun found by

Tejeda had a barrel that had been sawed down to sixteen inches.

The gun was loaded and contained six cartridges.

          Meanwhile, Cruz continued his pursuit of the Mazda.    The

Mazda eventually stopped, turning into the entrance of a residence.

There, Cruz observed an individual holding a black pistol exit the

front passenger seat and flee into a wooded area.      Casillas and

the driver, later identified as Manso, exited the vehicle.      Both

men were placed under arrest.   At the time, Casillas was wearing

a tee shirt and basketball shorts.

          In an interview conducted with Special Agent José Díaz-

Narváez ("Díaz") after his arrest, Manso asserted that no one was

riding in the front passenger seat and that he had stopped in that

neighborhood to pick his wife up from a social gathering.     Manso

explained that he did not halt when Tejeda first signaled "because

he wanted to go to a safer place" to stop his car.   Cruz and Tejeda

testified that they did not observe Manso's wife at the residence

where he stopped.   The jury also heard testimony that, earlier

that same day, Bonilla and Cruz had confronted Casillas and

observed him and Manso with a group of friends at Manso's father's

home.

          Manso was indicted for one count of aiding and abetting

a convicted felon in the possession of a firearm under 18 U.S.C.




                                -4-
§§ 21 and 922(g)(1).2          At trial, the parties stipulated that

Casillas was a convicted felon and therefore a prohibited person

under     §    922(g)(1),    that   Casillas   knowingly    possessed    the

Winchester shotgun loaded with six cartridges in or affecting

interstate commerce, and that the Mazda was registered to Manso's

mother.       At the close of the Government's case, Manso moved for a

judgment of acquittal under Rule 29 of the Federal Rules of

Criminal Procedure, which the district court denied from the bench.

Following the two-day trial, the jury found Manso guilty of aiding

and     abetting,    and    Manso   was   sentenced   to   fifteen   months'

imprisonment and three years' supervised release.            Manso filed a

renewed motion for judgment of acquittal, which the district court

denied in a written opinion and order.           He appeals that decision

here.




1  18 U.S.C. § 2 is the federal aiding and abetting statute. It
provides, "[w]hoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal." 18 U.S.C. § 2(a).
2  "It shall be unlawful for any person who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce."
18 U.S.C. § 922(g)(1).


                                      -5-
                                         II.

1.     Standard of Review

               "Challenges   to    the   sufficiency         of   the    evidence    are

reviewed de novo."       United States v. Rodríguez-Martínez, 778 F.3d

367, 371 (1st Cir. 2015).          The evidence is evaluated in the light

most favorable to the verdict.             United States v. Santos-Rivera,

726 F.3d 17, 23 (1st Cir. 2013).               While the government need not

rule     out     each    "theory     consistent         with       the      defendant's

innocence . . . , we must decide whether that evidence, including

all plausible inferences drawn therefrom, would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime."            Id. (quoting United States v. Troy,

583 F.3d 20, 24 (1st Cir. 2009)).                 The standard of review is

rigorous,      and   defendants     challenging        the    sufficiency       of   the

evidence face "an uphill battle."              United States v. Seng Tan, 674

F.3d 103, 107 (1st Cir. 2012).

2.     Aiding and Abetting under Rosemond

               Manso's   argument    centers      on    the       advance    knowledge

requirement articulated in Rosemond, which involved a defendant's

conviction for aiding and abetting a violation of 18 U.S.C.

§ 924(c) during "a drug deal gone bad."                 Rosemond, 134 S. Ct. at

1243.     Section 924(c)(1)(A) provides minimum mandatory sentences

for those "who, during and in relation to any crime of violence or

drug trafficking crime . . . use[] or carr[y] a firearm."


                                         -6-
           The Court in Rosemond began with the well-established

premise that "a person is liable under § 2 for aiding and abetting

a crime if (and only if) he (1) takes an affirmative act in

furtherance of that offense, (2) with the intent of facilitating

the offense's commission."    Rosemond, 134 S. Ct. at 1245.     For

purposes of the intent inquiry, "a person who actively participates

in a criminal scheme knowing its extent and character intends that

scheme's commission."   Id. at 1249.    Turning to the question of

when an aider and abettor must know that a gun will be used, the

Court clarified that the "defendant's knowledge of a firearm must

be advance knowledge," i.e., "knowledge at a time the accomplice

can do something with it -- most notably, opt to walk away."    Id.

at 1249-50.   If the gun emerges only when the defendant no longer

has a "realistic opportunity to quit the crime . . . , the defendant

has not shown the requisite intent to assist a crime involving a

gun."   Id. at 1249.    Yet the Supreme Court noted that, "if a

defendant continues to participate in a crime after a gun was

displayed or used by a confederate, the jury can permissibly infer

from his failure to object or withdraw that he had such knowledge."

Id. at 1250 n.9.

3.   Rosemond's Application to Manso

           Manso contends that the Government "only succeeded in

establishing that [he] knew something illegal was afoot inside his

vehicle when officer Tejeda attempted to conduct a traffic stop."


                                -7-
To the contrary, the Government presented evidence that would have

allowed the jury to infer that Manso knew that Casillas possessed

a gun when Casillas first entered the Mazda.                      First, the firearm

was over a foot long -- so long that Tejeda needed to place it in

the rear seat of his patrol car after he retrieved it.                      Casillas,

who wore only a tee shirt and shorts, would have had difficulty

concealing a gun of that size.                 Further, Casillas and Manso had

been observed socializing that same day.                          The jury may have

reasonably        concluded    that     Manso       was     not   merely   giving    an

acquaintance a ride, but that he had spent time with Casillas

throughout the evening and may have seen Casillas carrying the gun

before he entered the car.             As a result, it is not "unreasonable,

insupportable, or overly speculative" for the jury to infer that

Manso was aware of the gun from the moment Casillas entered his

car.   United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)

("Reliance on indirect, as opposed to direct, evidence in a

criminal case is both permissible and commonplace.").

             In     this   way,       this     case    is     distinguishable       from

Rodríguez-Martínez,           where     we         determined      that    there    was

insufficient evidence to conclude that the defendant aided and

abetted the possession of a firearm in furtherance of a drug-

trafficking crime.         We noted that the gun in that case -- a Glock

pistol -- had been hidden in the co-defendant's jacket such that

"the arresting officers saw the gun for the first time when they


                                             -8-
asked   [the     defendant]     to     lift     his   shirt,"     and    we   therefore

determined that the government failed to present evidence that

would allow the jury to infer that the defendant ever saw the gun.

Rodríguez-Martínez, 778 F.3d at 373-74.                   Conversely, in the case

at hand, the Government presented evidence from which the jury

could infer that Manso saw the gun prior to the traffic stop,

namely, the relationship between Manso and Casillas, the gun's

size, and Casillas's attire.

            Moreover,        Manso's      argument     that     the     evidence     only

supports the conclusion that he saw the gun when Tejeda attempted

to   stop   the    car   fails       to    acknowledge      the    Supreme       Court's

instructions      that   a    "jury       can    permissibly      infer       from   [the

defendant's] failure to object or withdraw" once he sees a gun

that he had advance knowledge of the firearm.                      Rosemond, 134 S.

Ct. at 1250 n.9.      As a result, under Rosemond, the jury could have

inferred from Manso's failure to withdraw that he was aware of the

gun before the traffic stop.

            In    addition,      Manso's        conduct    easily       satisfies     the

affirmative act requirement as his evasive actions facilitated

Casillas's continued possession of the firearm.                    See id. at 1246-

47 (describing the affirmative act requirement).                          Viewing the

evidence in the light most favorable to the jury verdict, we find

that a jury reasonably could have determined that Manso's flight

and subsequent actions aided Casillas in avoiding the police and


                                           -9-
thus concealing his firearm from them.   Manso did not simply give

Casillas a ride:    he took part in a police chase.      Moreover,

Manso's assertion that the evidence only supported a conviction as

an "accessory after the fact" under 18 U.S.C. § 3 is unavailing:

Casillas continued to possess the gun during the first leg of the

chase, and Manso's evasive driving aided his continued violation

of § 922(g)(1) during that time.3

          Further, even if we accept Manso's contention that he

only learned of the gun when Tejeda first tried to stop the Mazda,

Manso does not adequately explain why it was too late to withdraw

at that moment.    See Rosemond, 134 S. Ct. at 1249-50.      Manso

reacted to Tejeda's attempted stop by driving onto a sidewalk and

sparking a high-speed car chase with three patrol cars.      It is

unclear why Manso could not have made a different choice, namely,

to pull to the side of the road.4     Manso fails to address why a


3 During oral argument, the Government stated that Manso's conduct
would have supported convictions under 18 U.S.C. §§ 2 and 3. This
assertion is problematic as "[t]he temporal boundary between
principals and aiders and abettors, on one hand, and accessories
after the fact, on the other hand, . . . remains important in
federal criminal law." United States v. Figueroa-Cartagena, 612
F.3d 69, 73 (1st Cir. 2010). That said, Manso's conduct continued
during the crime's commission and persisted after the crime was
arguably complete -- when Casillas relinquished the gun.
Nevertheless, this Court declines to address whether such behavior
could have invited liability under both provisions of the criminal
code.
4 In this way, Manso's behavior is distinguishable from the
situation described by the Supreme Court in which "an accomplice
agrees to participate in a drug deal on the express condition that
no one bring a gun to the place of exchange," but, during the deal,

                               -10-
reasonable   jury   could   not   have    determined   that,    once   Tejeda

attempted the traffic stop and Manso became aware of the gun, Manso

could not have effectively "walk[ed] away," id., by simply stopping

his car.     Indeed, the jury could have determined that Manso's

purported reasons for failing to stop -- that he preferred to pull

over in a safer area and wanted to pick his wife up from an

event -- were not credible in light of his evasive and potentially

dangerous    behavior,   including       driving   onto   a    sidewalk   and

speeding, and the fact that his wife was not present in the

neighborhood where he eventually stopped.5


sees a gun hidden in his accomplice's jacket. Rosemond, 134 S.
Ct. at 1251.     The Court explained that the defendant "might
increase the risk of gun violence" by withdrawing in the middle of
the deal and, therefore, "a jury is entitled to find that the
defendant intended only a drug sale" and lacked advance knowledge
of the firearm. Id. Refusing to comply with a policeman's orders
and engaging in a high-speed chase is inconsistent with the Supreme
Court's reasoning here, which touches on concerns that a
defendant's behavior may increase the risk of gun violence.       A
jury reasonably could have found that Manso's acts increased --
rather than decreased -- the risk of harm.
5  During oral argument, Manso suggested that, once the act of
possession began, the offense had already commenced and Manso could
no longer have advance knowledge of its elements. Manso failed to
raise this point in his appellate brief, despite having addressed
it before the district court on multiple occasions and expanding
upon it in oral argument. In any event, § 922(g)(1) has no such
temporal element: possession is a continuous violation that "is
generally understood as a course of conduct." United States v.
Benjamin, 711 F.3d 371, 378 (3d Cir. 2013); accord United States
v. Destefano, No. 98-2054, 1999 WL 1319192, at *1 (1st Cir.
Nov. 22, 1999). And although a defendant must "participate[] in
a criminal venture with full knowledge of the circumstances
constituting the charged offense," Rosemond, 134 S. Ct. at 1248-
49, "a defendant can be convicted as an aider and abettor without
proof that he participated in each and every element of the

                                   -11-
4.   Jury Instructions

           The Court in Rosemond stated that aiding and abetting

jury instructions must "direct the jury to determine when [the

defendant] obtained the requisite knowledge."        Rosemond, 134 S.

Ct. at 1251-52.    Here, the jury instructions asked the jury to

determine, in relevant part, whether Manso "consciously shared

Mr. Casillas-Sánchez's knowledge that he possessed the shotgun."

On   appeal,   Manso   makes   a   fleeting   reference   to    the   jury

instructions, asserting, in a single sentence, that the jury "was

not directed to determine when Mr. Manso obtained the requisite

knowledge."     Manso failed to bring this argument before the

district court, despite the trial judge raising the issue of

Rosemond's directive concerning jury instructions.6        As Manso did

not object below and the issue received only cursory treatment

before this Court, we consider the argument waived.            See United

States v. García-Ortiz, 792 F.3d 184, 191 n.9 (1st Cir. 2015) (not

addressing whether jury instructions "did not sufficiently capture


offense," id. at 1246 (quoting United States v. Sigalow, 812 F.2d
783, 785 (2d Cir. 1987)). It follows that a defendant may aid and
abet a convicted felon's possession of a gun under § 922(g)(1)
without contributing to his acquisition of the firearm.
6  When discussing the Rule 29 motion, the district court noted
that "[o]ne of the things highlighted here by [defense counsel] in
the Rosemond case talks about juror instructions." This statement
does not imply that Manso raised an objection to jury instructions
before the district court.        Rather, Manso appears to have
highlighted this issue in his discussion of the "advance knowledge"
requirement as it related to the evidence adduced at trial.


                                   -12-
the knowledge requirement" under Rosemond as the issue was "waived

for lack of development").7

                              III.

          The judgment of the district court is affirmed.

          Affirmed.




7   Were we to address this issue, we would review the jury
instructions under a plain error standard in light of Manso's
failure to object before the lower court. Fed. R. Crim. P. 52(b).
On plain error review, Manso would need to demonstrate that the
error was "clear or obvious." United States v. García-Torres, 341
F.3d 61, 66 (1st Cir. 2003). Manso would have difficulty making
this showing: the First Circuit already had an advance knowledge
requirement for aiding and abetting convictions prior to Rosemond,
and this Court has consistently used the "consciously shared"
formulation to describe our aiding and abetting law.       García-
Ortiz, 792 F.3d at 188-90 (querying whether the defendant
"consciously shared the principal's knowledge"); Spinney, 65 F.3d
at 235 (describing the "consciously shared" inquiry as one of the
"central requirement[s]" of an aiding and abetting violation).
Accordingly, an error in which the district court used a well-
established formulation of unchanged First Circuit law is unlikely
to qualify as plain error. See United States v. Davis, 750 F.3d
1186, 1193-94 (10th Cir. 2014) (finding that the same instruction
"necessarily encompasses the planned use of a firearm" and that
the jury "implicitly found that [the defendant] had advance
knowledge of the firearm").


                              -13-
