          United States Court of Appeals
                  For the First Circuit

No. 15-1900

                UNITED STATES OF AMERICA,
                        Appellant,

                            v.

              ÁNGEL GABRIEL FERNÁNDEZ-JORGE,
                   Defendant, Appellee.


No. 15-1975
                UNITED STATES OF AMERICA,
                        Appellee,

                            v.

                    BRIAN PÉREZ-TORRES,
                  Defendant, Appellant.
                   ____________________

No. 15-2001

                UNITED STATES OF AMERICA,
                        Appellee,

                            v.

               JOSÉ A. DE LA CRUZ-VÁZQUEZ,
                  Defendant, Appellant.
                   ____________________

No. 15-2104

                UNITED STATES OF AMERICA,
                        Appellee,

                            v.

                    EDWIN OTERO-DÍAZ,
                  Defendant, Appellant.
                       ____________________
No. 15-2168

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                      ISAÍAS MENDOZA-ORTEGA,
                       Defendant, Appellant.
                        ____________________
No. 15-2244

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                       EDWIN OTERO-MÁRQUEZ,
                      Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                              Before

                  Torruella, Lipez, and Barron,
                         Circuit Judges.


     Víctor P. Miranda-Corrada, for appellant Fernández-Jorge.
     Ramón M. González, on brief for appellant Pérez-Torres.
     Humberto Guzmán-Rodríguez and Guzmán & Rodríguez-López Law
Office, on brief for appellant De la Cruz-Vázquez.
     Edgar L. Sánchez-Mercado, on brief for appellant Otero-Díaz.
     Juan A. Albino-González, with whom Albino & Assoc. Law Office,
PC was on brief, for appellant Mendoza-Ortega.
     Lauren E.S. Rosen, Assistant Federal Public Defender, with
whom Patricia A. Garrity, Research and Writing Specialist, Eric A.
Vos, Federal Public Defender, and Vivianne M. Marrero-Torres,
Assistant Federal Public Defender, Supervisor, Appeals Section,
were on brief, for appellant Otero-Márquez.
                                  -2-
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.



                          June 26, 2018




                               -3-
 1               TORRUELLA, Circuit Judge.          After a jury trial, Ángel

 2   Gabriel Fernández-Jorge, Brian Pérez-Torres, José A. De La Cruz-

 3   Vázquez, Edwin Otero-Díaz, Isaías Mendoza-Ortega, Edwin Otero-

 4   Márquez,     and   Rafael        Martínez-Trinidad    (collectively,     the

 5   "Defendants") were found guilty of possessing firearms in a school

 6   zone.1    The jury also found Mendoza-Ortega and Otero-Márquez guilty

 7   of possessing firearms as convicted felons.          All of the Defendants

 8   then brought motions for acquittal, but the district court granted

 9   only that of Fernández-Jorge.           Now, the government appeals the

10   district court's grant of Fernández-Jorge's motion, while Pérez-

11   Torres, De La Cruz-Vázquez, Otero-Díaz, Mendoza-Ortega, and Otero-

12   Márquez    (collectively,    the    "Defendant-Appellants")     appeal   the

13   district court's denial of their motions for acquittal.            We also

14   consider whether the district court's jury instructions concerning

15   aiding and abetting liability were erroneous.

16               After considering all of this, we hold the following:

17   (1)   sufficient      evidence     supported   the   Defendant-Appellants'

18   convictions for possession of a firearm in a school zone (Count

19   Three); (2) sufficient evidence did not support Fernández-Jorge's

20   conviction for possession of a firearm in a school zone; (3) the

21   district    court's    erroneous     jury   instructions   on   aiding   and


     1  Martínez-Trinidad elected not to pursue an appeal following his
     conviction.


                                           -5-
 1   abetting liability require us to vacate the Defendant-Appellants'

 2   convictions for Count Three; and (4) sufficient evidence did not

 3   support the convictions of Mendoza-Ortega and Otero-Márquez for

 4   possession of a firearm as convicted felons, which requires us to

 5   reverse their convictions for Count One.

 6                               I.   Background

 7               We begin with a brief summary of the facts and procedural

 8   events leading up to this appeal, into which we shall delve with

 9   greater detail in taking up the various issues the parties have

10   raised.    Because this appeal pertains, in part, to the Defendants'

11   motions for acquittal before the district court, we recount the

12   facts here "in the light most favorable to the government."      See

13   United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018).

14   A. The shootout

15               A shootout took place in front of the Jardines de Oriente

16   public housing project, in Humacao, Puerto Rico, during the late

17   morning of February 16, 2012.    Officers from the Puerto Rico Police

18   Department arrived at Jardines de Oriente shortly after the gunfire

19   stopped.    They observed several people in dark clothing abscond -

20   - jumping the housing project's perimeter fence and entering the

21   large concrete tunnel behind the fence into which the Mabú creek

22   drains.    That tunnel runs between the Jardines de Oriente and the

23   Rufino Vigo public elementary school (the "School").      It ends at


                                       -6-
 1   the Doctor Palou public housing project.          Officers positioned

 2   themselves outside of the tunnel's entrance.        Two men attempted

 3   to escape from the top of the tunnel through a manhole.         After

 4   police fired a warning shot, one of these men, De la Cruz-Vázquez,

 5   dove into some nearby bushes and was promptly arrested, searched,

 6   and found to be carrying ammunition.      The other man retreated back

 7   down the manhole in response to the warning shot.

 8             Meanwhile, the officers waiting at the entrance to the

 9   tunnel heard voices and the sound of gunfire from inside the

10   tunnel.   The officers ordered anyone inside the tunnel to exit

11   with their hands up.    The six remaining Defendants -- all shirtless

12   and unarmed -- emerged from the tunnel and were arrested.    Officers

13   then searched the tunnel and recovered seven firearms, ammunition,

14   and various articles of clothing.      Ballistics analyses would later

15   link four of these weapons to the shootout at Jardines de Oriente.

16             Five of the Defendants stated that they lived at the

17   Doctor Palou public housing project, located at the end of the

18   tunnel opposite where the shootout occurred.     Mendoza-Ortega lived

19   elsewhere in Humacao.     Fernández-Jorge was not from Humacao, but

20   rather from San Juan.

21   B. The trials

22             In February 2012, a grand jury returned an indictment

23   against the seven individuals arrested in connection with the


                                      -7-
 1   shootout.    Count One of the indictment charged Otero-Márquez and

 2   Mendoza-Ortega with possessing firearms as convicted felons, in

 3   the principal and aiding and abetting forms.    See 18 U.S.C. §§ 2,

 4   922(g).     Count Three accused all seven Defendants of possessing

 5   firearms within a school zone, also in the principal and aiding

 6   and abetting forms.    See 18 U.S.C. §§ 2, 922(q)(2)(A).2

 7               All of the Defendants proceeded to trial, and the jury

 8   found all of them guilty on all counts.    However, it then came to

 9   light that, through unsanctioned research, one or more members of

10   the jury had discovered that two people died during the shootout.3

11   This forced the district court to declare a mistrial.

12               A second trial ensued, and the jury again found all

13   Defendants guilty on Count Three, and found Mendoza-Ortega and

14   Otero-Márquez guilty on Count One as well.     The jury filled out

15   general verdict forms, which did not distinguish between the

16   principal and aiding and abetting forms of the charged offenses.

17   The Defendants proceeded to file motions for acquittal.         See

18   Fed. R. Crim. P. 29.     In an omnibus order, the district court

19   denied those motions in their entirety, except as to Fernández-



     2  The district court granted the Defendants' motion for acquittal
     on Count Two of the indictment, possession of a stolen firearm,
     and the government did not appeal that decision.
     3   Evidence of these deaths had been excluded from trial.


                                      -8-
 1   Jorge.   According to the district court, the government had not

 2   brought forth sufficient evidence that Fernández-Jorge -- who,

 3   unlike his codefendants, did not live in Humacao -- knew or should

 4   have known that he was in a school zone.    The court sentenced each

 5   of the remaining Defendants to 60 months' imprisonment for Count

 6   Three.   It also sentenced both Mendoza-Ortega and Otero-Márquez

 7   to an additional 120 months' imprisonment for Count One, to be

 8   served consecutively with their sentences for Count Three.

 9             Now, the government appeals Fernández-Jorge's acquittal

10   and the Defendant-Appellants appeal their convictions, challenging

11   both the sufficiency of the evidence and the district court's jury

12   instructions.   We   first   consider   whether   sufficient   evidence

13   supported all of the Defendants' convictions on Count Three, and

14   the convictions of Mendoza-Ortega and Otero-Márquez on Count One.

15   We then address whether the district court correctly instructed

16   the jury on aiding and abetting liability.

17                     II.    The motions for acquittal

18             We review a district court's ruling on a Rule 29 motion

19   de novo, viewing the evidence in the light most favorable to the

20   jury's guilty verdict.    United States v. Santos-Soto, 799 F.3d 49,

21   56-57 (1st Cir. 2015).   The "verdict must stand unless the evidence

22   is so scant that a rational factfinder could not conclude that the

23   government proved all the essential elements of the charged crime


                                      -9-
 1   beyond a reasonable doubt."        United States v. Rodríguez-Vélez, 597

 2   F.3d 32, 39 (1st Cir. 2010) (emphasis in original).

 3                 Because Counts One and Three charged the Defendants in

 4   the principal and aiding and abetting forms, we also find it useful

 5   to   review    the    essentials   of    aiding    and    abetting   liability.

 6   18 U.S.C. § 2 provides that anyone who aids or abets a crime

 7   against the United States "is punishable as a principal."4                  One

 8   "is liable under § 2 for aiding and abetting a crime if (and only

 9   if) he (1) takes an affirmative act in furtherance of that offense,

10   (2) with the intent of facilitating the offense's commission."

11   United States v. Encarnación-Ruiz, 787 F.3d 581, 587 (1st Cir.

12   2015) (quoting Rosemond v. United States, 134 S. Ct. 1240, 1245

13   (2014)).      To be guilty of aiding and abetting a crime, a defendant

14   need not have actually assisted the principal in committing each

15   element of the crime.       Id.    But, the defendant does need to have

16   "intend[ed]      to   facilitate    'the       specific    and   entire   crime

17   charged.'"      Id. (quoting Rosemond, 134 S. Ct. at 1248).               As a



     4  The overwhelmingly preferred nomenclature for this form of
     criminal liability -- which the indictment also used -- is the
     conjunctive "aiding and abetting." Yet, 18 U.S.C. § 2 applies to
     anyone who "aids, abets, counsels, commands, induces or procures
     [the underlying offense's] commission."     Id. (emphasis added).
     This distinction seems to lack significance, though, as it is
     difficult to imagine a case in which a defendant has "aided" the
     commission of an offense without also having "abetted" it, or vice
     versa.


                                             -10-
 1   result, the defendant must have had "advance knowledge" of the

 2   crime he or she facilitated to be guilty of aiding and abetting

 3   it.     Id. at 588 (quoting Rosemond, 134 S. Ct. at 1249); see also

 4   United States v. Ford, 821 F.3d 63, 69 (1st Cir. 2016).           Finally,

 5   "[p]roving beyond a reasonable doubt that a specific person is the

 6   principal is not an element of the crime of aiding and abetting."

 7   United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982).

 8   A. The Defendant-Appellants' motions for acquittal on Count
 9   Three
10
11                In attacking the district court's denial of their Rule

12   29 motions as to the possession of a firearm in a school zone

13   count,    the    Defendant-Appellants      advance   three   categories    of

14   arguments.      First, all of the Defendant-Appellants argue that the

15   government      did   not   introduce   sufficient    evidence   that     they

16   possessed the firearms recovered from the tunnel.            Second, De la

17   Cruz-Vázquez and Otero-Díaz assert that the government failed to

18   sufficiently establish that they were, in fact, within a school

19   zone.    Finally, Pérez-Torres, De la Cruz-Vázquez, Mendoza-Ortega,

20   and Otero-Díaz argue that sufficient evidence did not support the

21   conclusion that they knew or should have known that they were in

22   a school zone.

23           1. Possession of firearms

24                We begin by considering whether any rational fact-finder

25   could have concluded beyond a reasonable doubt that the Defendant-

                                         -11-
 1   Appellants possessed firearms or aided and abetted each other in

 2   doing so with advance knowledge of this element.5                  See Rosemond,

 3   134 S. Ct. at 1249; Rodríguez-Vélez, 597 at 39.

 4                "'Knowing possession of a firearm' may be proven through

 5   either actual or constructive possession."                     United States v.

 6   Guzmán-Montañez,       756   F.3d      1,   8    (1st   Cir.   2014).       Proving

 7   constructive       possession,    in    turn,     requires     proving    that   the

 8   defendant had "the power and intention of exercising dominion and

 9   control over the firearm." Id. (citing United States v. DeCologero,

10   530 F.3d 36, 67 (1st Cir. 2008)).               Constructive possession may be

11   joint.    DeCologero, 530 F.3d at 67.            Additionally, it is possible

12   to   prove    constructive       possession       by    relying   entirely       upon

13   circumstantial evidence.         Guzmán-Montañez, 756 at 8 (citing United

14   States v. Wight, 968 F.2d 1393, 1398 (1st Cir. 1992)).                     However,

15   "mere presence with or proximity to weapons or association with

16   another      who     possesses      a       weapon"      is    insufficient        to

17   circumstantially establish constructive possession. United States

18   v. Rodríguez-Lozada, 558 F.3d 29, 40 (1st Cir. 2009).                    Rather, it

19   is necessary to show "some action, some word, or some conduct that



     5  None of the Defendant-Appellants have challenged the district
     court's holding that, for Rule 29 purposes, the government
     succeeded in establishing that the firearms in question had
     traveled through interstate commerce, an element of Counts One and
     Three. See 18 U.S.C. § 922(g), (q)(2)(A).


                                             -12-
 1   links the individual to the contraband and indicates that he had

 2   some stake in it, some power over it."                United States v. McLean,

 3   409 F.3d 492, 501 (1st Cir. 2005) (quoting In re Sealed Case, 105

 4   F.3d   1460,    1463    (D.C.      Cir.     1997)).      For   example,       valid

 5   circumstantial     evidence        of   constructive      possession       includes

 6   evidence of an individual's "control over the area where the

 7   contraband is found."        Id.

 8                Though no witnesses testified to having seen any of the

 9   Defendant-Appellants possessing a weapon, the government contends

10   that it introduced ample circumstantial evidence of possession.

11   We now review that evidence.

12                First, Officer Ángel Fontánez testified that he was on

13   motorcycle patrol near Jardines de Oriente on the morning of

14   February 16, 2012, when he heard the sound of gunfire emanating

15   from   the   housing    project.          Fontánez    took   cover   behind    the

16   supporting     column   of   a     nearby   bridge,    and   once    the   gunfire

17   subsided, he approached Jardines de Oriente on his motorcycle.

18   Though some buildings partially obstructed his view, he saw seven

19   or eight individuals -- several of them wearing dark clothing --

20   running towards a fence at the back of Jardines de Oriente.                     He

21   said that he then observed three or four people scale that fence

22   and head toward the entrance of a tunnel located on the other side.




                                             -13-
 1   Fontánez hurried to the tunnel's entrance, where several other

 2   officers had also gathered.

 3                Fontánez then testified that, while positioned outside

 4   the entrance, he heard voices and the sound of gunfire from within

 5   the tunnel.     According to Fontánez, two people then emerged from

 6   a manhole atop the tunnel and attempted to flee.                When those two

 7   did not heed Fontánez's order to freeze, he fired a warning shot.

 8   In response, one of the two individuals retreated back down the

 9   manhole, while the other dove into some nearby bushes.             The bushes,

10   however, provided ineffective cover, and officers arrested this

11   individual    (later    identified    as    De   la   Cruz-Vázquez)    --   whom

12   Fontánez described as wearing a black jacket and gloves -- and

13   discovered a magazine containing around 30 bullets in his pocket.

14   Officer     Víctor    Cruz-Sánchez    corroborated       Officer    Fontánez's

15   testimony     about    arresting     De    la    Cruz-Vázquez    and   finding

16   ammunition on him after he surfaced from the manhole.6

17                Agent José López-Ortiz testified that he was on patrol

18   when he received a radio call about the events transpiring at

19   Jardines de Oriente.       He approached the housing project in his



     6  Cruz-Sánchez himself did not testify during the second trial.
     Rather, the district judge's two law clerks read Cruz-Sánchez's
     testimony from the first trial into the record. One clerk played
     the part of Cruz-Sánchez, and the other the various attorneys who
     questioned him during that proceeding.


                                          -14-
 1   vehicle and waited underneath the same bridge as Fontánez, along

 2   with other officers, until the sound of gunfire coming from

 3   Jardines de Oriente relented.         López-Ortiz testified that, as he

 4   and Fontánez approached Jardines de Oriente together, he saw three

 5   people dressed in black jump over a fence and into a ditch on the

 6   other side.    From there, López-Ortiz explained, those individuals

 7   ran into a tunnel, at which point he lost sight of them.

 8                The jury also heard testimony from Puerto Rico Police

 9   Agent Abdel Morales-De León, another of the officers who responded

10   to the shootout at Jardines de Oriente.         He too testified about

11   hearing male voices and gunfire from within the tunnel as he

12   approached its entrance alongside other officers.            Six shirtless

13   males then emerged from the tunnel and were promptly detained.7

14   Morales-De    León   recovered   a   .233-caliber   bullet   --   which   he

15   described as appearing recently discharged -- from the ground where



     7  We note that the record is not entirely clear as to whether De
     la Cruz-Vázquez and his companion attempted to escape from the
     manhole before or after the remaining six Defendants were arrested
     after emerging from the tunnel's entrance.       This is largely
     because no one officer testified about both events. The parties
     and the district court, however, all seem to have treated the
     "manhole escape" as having occurred first. Particularly because
     nobody has made arguments concerning the possibility that anyone
     remained in the tunnel after the seven Defendants were detained,
     we do not see any reason to depart from this assumption.
     Additionally, insofar as this sequence of events is more favorable
     to the jury's verdict, the standard for reviewing Rule 29 motions
     would also require us to construe the facts in this manner.


                                          -15-
 1   these individuals were arrested.         He then entered the tunnel with

 2   a group of officers, using a small flashlight to light their way.

 3   Morales-De León explained that their search of the tunnel turned

 4   up   seven   firearms,   a    fanny    pack   containing    several    loaded

 5   magazines, and various articles of dark clothing.            He added that

 6   the officers noticed fresh mud prints on the steps leading up to

 7   a manhole connecting the tunnel to the surface, and that the

 8   manhole cover had been removed.

 9                Officer Daniel Rosas-Rivera also provided an account of

10   his role in responding to the shootout and subsequent events.             He

11   described hearing gunfire from within the tunnel as he approached

12   it alongside other officers.            He then told the jury that he

13   observed six shirtless men emerge from the tunnel with their hands

14   up, exclaiming "don't shoot us."         Rosas-Rivera was also among the

15   officers who entered the tunnel with a flashlight immediately after

16   the Defendants' arrest.         He testified that their sweep of the

17   tunnel revealed that it was possible to exit the tunnel via a

18   manhole, and that they found that manhole open, its cover having

19   been moved aside.    Rosas-Rivera also explained that the officers'

20   search of the tunnel yielded a bullet, loaded firearms, and

21   magazines.

22                Gualberto       Rivas-Delgado      testified      about      the

23   investigation of the tunnel that he undertook as a member of the


                                           -16-
 1   Puerto Rico Police's Technical Services Division.          He arrived on-

 2   scene at around 4:00 p.m. on the day of the shootout, after Rosas-

 3   Rivera and Morales-De León had completed the initial sweep of the

 4   tunnel about which they testified.           Rivas-Delgado found more

 5   ammunition inside of the tunnel -- some of it submerged in puddles,

 6   and some sealed in a plastic bag -- as well as additional articles

 7   of clothing, most of them dark in color.

 8             Finally,   the    jury     heard    testimony     from     Edward

 9   Pérez-Benítez, a firearms examiner and tool marks expert from

10   Puerto Rico's Institute of Forensic Sciences.           He explained that

11   he had examined the weapons recovered from the tunnel and bullets

12   recovered from the site of the shootout at Jardines de Oriente.

13   His investigation led him to conclude that four of the guns found

14   in the tunnel had been used in the shootout.

15             In   synthesis,   the   jury    heard   the   following:   (1)   a

16   shooting had occurred in the Jardines de Oriente on the morning of

17   February 16, 2012; (2) seven or eight individuals in dark clothing

18   were seen fleeing the scene of the shooting; (3) officers saw three

19   or four of these men enter a tunnel; (4) De la Cruz-Vázquez was

20   arrested, shirtless, after trying to escape from a manhole atop

21   the tunnel, and was found to be carrying a loaded magazine; (5)

22   officers standing at the entrance to the tunnel heard weapons

23   discharge inside the tunnel; (6) the remaining six Defendants then


                                        -17-
 1   emerged, shirtless, from the tunnel and were arrested; (7) officers

 2   recovered seven firearms, ammunition, and various articles of dark

 3   clothing from within the tunnel; and (8) a ballistics expert linked

 4   four of those firearms to the shootout at Jardines de Oriente.

 5               All of this is sufficient evidence for a rational fact-

 6   finder to conclude that at least one of the Defendant-Appellants

 7   possessed a firearm, while the remainder aided and abetted him.

 8   See Campa, 679 F.2d at 1013 (identity of principal not an element

 9   of aiding and abetting).    And that is sufficient to sustain the

10   Defendant-Appellants' Count Three convictions. The first component

11   of this conclusion, that at least one of the seven Defendants

12   possessed a firearm, is particularly unavoidable given that four

13   of the weapons found in the tunnel had been fired during the

14   shootout.   Further, keeping in mind that advance knowledge of each

15   element of the underlying offense is an element of aiding and

16   abetting, see Rosemond, 134 S. Ct. at 1249, we agree with the

17   government that the evidence here does tend to suggest that the

18   Defendant-Appellants had advance knowledge of, and participated in

19   some form in, the shootout.      Thus, we think that the evidence

20   would allow a rational fact-finder to conclude that any Defendant-

21   Appellants who were not principals (because they did not possess

22   firearms) nonetheless facilitated the principal or principals'




                                     -18-
 1   possession, with advance knowledge of this element.              We now turn

 2   to the remaining elements of Count Three.

 3        2. Actual presence in a school zone

 4               We now take up the assertion of De La Cruz-Vázquez and

 5   Otero-Díaz that the government failed to establish that they were,

 6   in fact, in a school zone when they allegedly possessed a firearm.

 7   A "school zone" is the area within 1,000 feet from the grounds of

 8   any school.      United States v. Nieves-Castaño, 480 F.3d 597, 603

 9   (1st Cir. 2007) (quoting 18 U.S.C. § 921(a)(25)).            We note that

10   the proper inquiry here -- given the possibility for aiding and

11   abetting liability -- is whether any of the Defendants found

12   himself in a school zone while possessing a firearm.

13               At trial, government witness and Puerto Rico Police

14   Officer José Hiraldo-Benítez explained his conclusion, which he

15   reached by employing distance-measuring laser equipment, that 710

16   feet separated the School's perimeter fence and the point in the

17   tunnel where the weapons were found.        He likewise explained that

18   804 and 837 feet separated the School's fence from two points where

19   spent shell casings from the shootout had been found.8              Finally,

20   according   to   Hiraldo-Benítez,    the   margin   of   error    for   these

21   measurements was less than one inch.


     8   Hiraldo-Benítez's measurements relied on other                 officers'
     representations of where the weapons in the tunnel.


                                         -19-
 1              We find this to be sufficient evidence to support the

 2   conclusion that one or more of the Defendants possessed firearms

 3   within a school zone.        De La Cruz-Vázquez stresses that Hiraldo-

 4   Benítez may have arrived at his figure of 710 feet by measuring

 5   from a point atop the tunnel that did not necessarily lay precisely

 6   over the point in the tunnel where the weapons were found.                    This

 7   theoretical possibility does not, however, mean that no reasonable

 8   fact-finder   could       have   concluded     that   any   of   the   Defendant-

 9   Appellants possessed firearms anywhere within 1,000 feet of the

10   School.

11              First,     a     reasonable     fact-finder      could      well   have

12   concluded that Hiraldo-Benítez did measure from the correct point

13   atop the tunnel.        This is particularly so given the paucity of

14   reasons that De la Cruz-Vázquez offers to believe that Hiraldo-

15   Benítez   measured    from       an   incorrect   point.       Second,   even   if

16   Hiraldo-Benítez did measure from the wrong point, that still would

17   not   foreclose   the      reasonable     conclusion    that     the   Defendant-

18   Appellants possessed firearms in a school zone.                   Given that at

19   least four of the guns traveled from the site of the shootout to

20   the tunnel, the precise location in the tunnel where they were

21   found is of lesser importance.            We further note that De la Cruz-

22   Vázquez does not dispute that shell casings were found within the

23   school zone. And this strongly suggests that the shootout involved


                                             -20-
 1   guns being fired, and therefore possessed, within a school zone.

 2   De la Cruz-Vázquez and Otero-Díaz, therefore, come up quite short

 3   in attempting to convince us that no reasonable factfinder could

 4   have concluded that any of the Defendants possessed a firearm

 5   within 1,000 feet of the School.           Having resolved that point, we

 6   now take up the final disputed element of Count Three.

 7        3. Knowing presence in a school zone

 8                We   next   consider   whether    each   of   the    Defendant-

 9   Appellants knew or should have known that they were in a school

10   zone while they were possessing a firearm or, alternatively, that

11   each of them was aiding and abetting such possession of a firearm

12   in a school zone with the requisite advance knowledge.                   See

13   18 U.S.C. §§ 2, 922(q)(2)(A).        Circumstantial evidence may serve

14   as the solitary proof of one's culpable knowledge.           United States

15   v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).                    However, in

16   Guzmán-Montañez, we overturned the defendant's conviction under

17   § 922(q)(2)(A) when the government, in attempting to establish the

18   defendant's knowledge that he was in a school zone, relied solely

19   upon the school's proximity to the location where the defendant

20   was found armed.     756 F.3d at 11-12.      In concluding that a rational

21   factfinder could not have made this "giant leap of faith," we

22   stressed in particular that the defendant was not a resident of

23   that area.    Id. at 12.    This contrasts with our holding in Nieves-


                                         -21-
 1   Castaño.   There, in reaching the opposite conclusion about the

 2   defendant's knowledge, we emphasized that "three minor children

 3   lived with the defendant, and it would be easy for a jury to

 4   conclude that she knew there were two schools nearby, within or

 5   just outside her housing project and less than 1000 feet away, and

 6   that she regularly passed by those schools."         480 F.3d at 604.

 7   Here, the evidence of the Defendant-Appellants' knowledge of the

 8   school zone seems to fall between these two poles.

 9              The government makes a number of arguments in support of

10   the   district   court's   determination   that   sufficient   evidence

11   established that the Defendant-Appellants either knew or should

12   have known that they were in a school zone.         First -- pointing

13   largely to the same evidence we considered in addressing their

14   actual presence in a school zone -- the government stresses that

15   the Defendant-Appellants found themselves in close proximity to

16   the School at the relevant times.       Specifically, the government

17   highlights that the School's basketball court was approximately 50

18   feet from the fence that the Defendant-Appellants scaled en route

19   to the tunnel.     The government adds that the basketball court's

20   roof was also visible from Jardines de Oriente.       But, on its own

21   -- especially given that nothing about the roof of this basketball

22   court suggested that it was part of a school -- this evidence would

23   not suffice.     See Guzmán-Montañez, 756 F.3d at 11-12.       However,


                                      -22-
 1   this   is   not   the   extent   of   the    evidence   that   the   government

 2   introduced.

 3               The government also avers that it would be reasonable

 4   for the jury to have inferred that the Defendant-Appellants put

 5   some amount of forethought into the shootout and their subsequent

 6   escape.     The swiftness of the Defendant-Appellants' flight from

 7   Jardines de Oriente and into the tunnel, the government says,

 8   suggests they had planned out this endeavor beforehand.               And as a

 9   result, the government tells us, a rational fact-finder could

10   certainly infer that, in undertaking all of this planning, the

11   Defendants would have realized that there was a school nearby.

12               Furthermore, the government reminds us that all of the

13   Defendant-Appellants were residents of Humacao, and that all of

14   them except for Mendoza-Ortega lived at Dr. Palou, 9 and that



     9  We pause to address what appears to be a mistake in the district
     court's order on the Defendants' Rule 29 motions. In that order,
     the district court first stated that Otero-Márquez lived in the
     Dr. Palou housing project, while Mendoza-Ortega did not, though he
     did live elsewhere in Humacao. But in the next paragraph, after
     considering the arguments of the residents of the Dr. Palou
     projects, the district court remarked that "Edwin Otero-Márquez
     was a resident of Humacao and had been spotted with several co-
     defendants at the Dr. Palou housing project on another occasion.
     Hence, one can reasonabl[y] conclude that [he] knew the area well
     and was aware that the [School] was located on the same street as
     Dr. Palou . . . ." Thus, in this paragraph, the court appears to
     have confused Otero-Márquez, who was a resident of the Dr. Palou
     project, with Mendoza-Ortega, who was not.      Ultimately though,
     this error is harmless, because we, like the district court,
     conclude that sufficient evidence established that Mendoza-Ortega

                                           -23-
 1   Government witness Officer Lebrón-Delgado testified that he had

 2   seen Mendoza-Ortega at Dr. Palou before the date of the shootout.

 3   And this is all particularly important because the School, a two-

 4   story building, is located on the same street as Dr. Palou.

 5   Additionally, the front of the School features signage identifying

 6   it as an elementary school.

 7                We think that all of this would allow a reasonable fact-

 8   finder to conclude that all of the Defendant-Appellants either

 9   knew or should have known that they were in a school zone.      It is

10   difficult to imagine that the four Defendant-Appellants who lived

11   at Dr. Palou were unaware of the existence of a school on the same

12   street.   Though Mendoza-Ortega did not live at Dr. Palou, we

13   nonetheless find it reasonable to conclude that -- as a resident

14   of Humacao who had visited Dr. Palou before -- he at least should

15   have known that he was in a school zone.          And for these same

16   reasons, we also find it reasonable to conclude for Rule 29

17   purposes that the Defendant-Appellants all had "advance knowledge"

18   of the School's location for purposes of aiding and abetting

19   liability.

20                In summary, given the evidence at trial, a rational fact-

21   finder could conclude the following: (1) at least one of the




     and Otero-Márquez should have known they were in a school zone.


                                       -24-
 1   Defendant-Appellants possessed a firearm, while the others aided

 2   and   abetted   him    with    advance   knowledge;    (2)   the   Defendant-

 3   Appellant(s) who possessed a firearm did so while in a school zone;

 4   and (3) all of the Defendant-Appellants had advance knowledge of

 5   the School's location.          Thus, we hold that the government did

 6   introduce    sufficient       evidence   of   the     Defendant-Appellants'

 7   culpability on Count Three, and that the district court did not

 8   err in denying their Rule 29 motions as to that Count.

 9   B. Fernández-Jorge's motion for acquittal on Count Three

10               We now take up the government's challenge to the district

11   court's grant of Fernández-Jorge's motion for acquittal.                 The

12   thrust of the government's challenge is that, while not a resident

13   of    Humacao   like     the    Defendant-Appellants,        Fernández-Jorge

14   nonetheless had ample reason to know he was in a school zone.             In

15   so arguing, the government leans on evidence that the School

16   (though not any signage identifying it as such) was visible from

17   the entrance to Jardines de Oriente and nearby roads, and on the

18   ostensibly planned nature of the shootout and the Defendants'

19   flight from it -- which, according to the government, suggests a

20   certain level of familiarity with the area.10


     10  The government also maintained in its brief that the evidence
     of Fernández-Jorge's knowledge of the school zone was particularly
     strong "given the district court's observation that . . . 'the
     route passing in front of the school is a principal way to arrive
     at Dr. Palou.'" But the district court order does not indicate

                                          -25-
 1             But a number of considerations cut in the opposite

 2   direction.   For one, as Fernández-Jorge stresses, none of the

 3   police officers who testified at trial had ever seen him in Humacao

 4   before the shootout.   In fact, the government did not introduce

 5   any evidence that Fernández-Jorge had ever visited Humacao before

 6   the morning of the shootout.   And we recall that the only part of

 7   the School actually visible from Jardines de Oriente is the roof

 8   of its basketball court, which, again, provides no indication that

 9   it is part of a school.   Additionally, while it is possible that

10   Fernández-Jorge, who lived in San Juan, may have passed the

11   School's front entrance and seen the signs identifying it as a

12   school on his way to Humacao, this is not necessarily so.     For,

13   Fernández-Jorge posits that in traveling to Jardines de Oriente

14   from San Juan, one "would ordinarily take the more direct route,"

15   which does not involve driving past the School's front entrance.

16   Setting aside the question of whether this route is in fact the




     when at trial this was established, and the government has declined
     to provide a citation that would illuminate us on that score. We
     also observe that the government similarly cited only the district
     court order -- which, again, does not contain citations to the
     record -- for the proposition that the "front of the school
     contains the school's name and clearly identifies [it] as being an
     elementary school."    We feel compelled to      emphasize that --
     particularly in the context of arguments concerning the
     sufficiency of the evidence -- neglecting to provide citations to
     the record in support of factual assertions is a poor strategic
     choice.


                                    -26-
 1   most intuitive or direct, we do take note of the existence of an

 2   alternative route -- a point the government concedes -- that would

 3   not have taken Fernández-Jorge past the front of the School.

 4              In   sum,     the     government's    arguments    do   not    differ

 5   significantly from those that we rejected in Guzmán-Montáñez.               See

 6   756 F.3d at 11-12.       The government's only arguments that are not

 7   a variation of imputing knowledge of a school zone though mere

 8   physical proximity to a school involve the shootout's apparent

 9   premeditation     and        coordination,     and   the    possibility     that

10   Fernández-Jorge drove past the front of the School on his way to

11   Jardines de Oriente.11

12              But, even assuming that the Defendants did plan the

13   shootout together, this would not have required them to have all

14   visited   Jardines      de    Oriente    and   its   surrounding   area    with

15   Fernández-Jorge    in    tow.       Additionally,     the    School's    seeming

16   irrelevance to both the apparent objective of the Defendants' plan

17   (to go to Jardines de Oriente and shoot firearms), and their



     11  In its brief, the government also tells us that the word
     "school" appears nearly 450 times in the trial transcript, and
     that while "some fraction of those mentions were at sidebar or
     otherwise outside the jury's hearing, the overall number is
     nonetheless indicative of the thoroughness with which the location
     of the school, its position relative to events, and its visibility
     were presented to the jury."       Out of fear of inadvertently
     dignifying this argument with a longer discussion of it, we simply
     say here that we do not find it persuasive.


                                             -27-
 1   attempted escape through the tunnel, also weakens the suggestion

 2   that    their   advance    planning      would    imply        Fernández-Jorge's

 3   knowledge of the school zone.            And we also find the less-than-

 4   certain possibility that Fernández-Jorge would have driven past

 5   the School en route to Jardines de Oriente insufficient to tip the

 6   scales towards the reasonable conclusion that he knew or should

 7   have known of its location.        This inferential "leap," see id. at

 8   12 -- particularly in the absence of any evidence that Fernández-

 9   Jorge had previously been to Humacao, or about how and from where

10   he arrived at Jardines de Oriente on the day of the shootout -- is

11   too large for a rational fact-finder to have made.                     Therefore,

12   because   the   government     fails    to    convince    us    that   sufficient

13   evidence supported the conclusion, beyond a reasonable doubt, that

14   Fernández-Jorge knew or should have known of the School's location,

15   we affirm the district court's grant of his motion for acquittal.

16   C. Mendoza-Ortega and Otero-Márquez's motions for acquittal on
17   Count One
18
19               Turning now to Count One -- which charged Mendoza-Ortega

20   and    Otero-Márquez    with   possessing      firearms    as    felons   in   the

21   principal and aiding and abetting forms -- we begin by highlighting

22   that Mendoza-Ortega and Otero-Márquez, and nobody else, stipulated

23   that they had been previously convicted of crimes potentially

24   punishable with over one year of imprisonment, a necessary element

25   of that offense.       See 18 U.S.C. § 922(g).           Now, in reviewing the

                                            -28-
 1   district court's denial of their motions for acquittal as to that

 2   count, we ask if a rational fact-finder could have reached either

 3   of the following conclusions: (1) that Otero-Márquez and Mendoza-

 4   Ortega    both   possessed   firearms;     or   (2)   that   one   of    these

 5   individuals possessed a firearm while the other aided and abetted

 6   him. This is so because these two are the only previously convicted

 7   felons among the Defendant-Appellants.            And this is a crucial

 8   point.    For, while Count Three required only that someone have

 9   possessed a firearm and that the rest of the Defendants have aided

10   and abetted that person, Count One requires that at least one of

11   two specific individuals -- that is, those with prior felony

12   convictions -- possessed a firearm.

13               Harkening   back   to   our    earlier    discussion    of    the

14   government witnesses' trial testimony, see supra § II.A.1, while

15   it is plain that at least one of the Defendants possessed firearms,

16   there is scant evidence providing insight into who among the

17   Defendants that may have been.       Perhaps recognizing that it would

18   face an uphill battle in attempting to show that any particular

19   Defendant possessed a firearm, the government maintains that the

20   evidence "permits the inference" that each of the seven Defendants

21   possessed one of the seven firearms that police later found in the

22   tunnel.     And because the evidence that any one Defendant in

23   particular possessed a firearm would be equally applicable to the


                                         -29-
 1   remaining Defendants,12 it seems that the only possible conclusions

 2   to draw, for Rule 29 purposes, are that: (1) all seven Defendants

 3   possessed their own firearm; or (2) it is impossible to know which

 4   of the Defendants possessed firearms.            As a result of all of this,

 5   our   inquiry    becomes   this:     Could   a   rational    fact-finder     have

 6   concluded     beyond   a   reasonable    doubt    that    each   of   the   seven

 7   Defendants possessed exactly one firearm?              Or, alternatively, we

 8   can   frame    the   question   as   whether     the   government     introduced

 9   sufficient evidence that none of the Defendants were unarmed.

10                 In assessing whether the jury could permissibly conclude

11   that, because the number of Defendants corresponds to the number

12   of guns, each Defendant had one gun, we find it significant that

13   only four of the guns were linked to the shootout.               In theory, one

14   of the strongest arguments against the notion that one or more of

15   the Defendants was unarmed is essentially "who in the world would

16   participate in a planned shootout unarmed?"              But, while convincing

17   in theory, this argument loses much of its persuasiveness here,

18   when applied to the facts established at trial.

19                 We are confident in our conclusion, as discussed with

20   respect to Count Three, that a rational fact-finder could have



     12 True, De la Cruz-Vázquez had ammunition on his person when he
     was arrested, but because he had not been previously convicted of
     a felony, this does not impact our analysis here.


                                           -30-
 1   concluded on the basis of the evidence at trial that the Defendant-

 2   Appellants had advance knowledge that one of their number possessed

 3   a firearm during the shootout in which they participated in some

 4   form.   But, it does not follow that the evidence that all seven

 5   Defendants were involved in the shootout -- in some form -- was

 6   strong enough to serve as the basis for the further inferential

 7   leaps that are still necessary to land at the conclusion that all

 8   seven Defendants possessed a firearm.                This is particularly so in

 9   light of our reluctance to "stack inference upon inference in order

10   to uphold the jury's verdict."              United States v. Burgos, 703 F.3d

11   1, 10 (1st Cir. 2012) (quoting United States v. Valerio, 48 F.3d

12   58, 64 (1st Cir. 1995)); see also United States v. Ruiz, 105 F.3d

13   1492,   1500    (while        circumstantial       evidence      alone    may    provide

14   sufficient evidence to uphold a verdict, we disfavor stacking

15   inferences      to      uphold   a    conviction     on    the    basis     of   purely

16   circumstantial evidence).

17                Keeping in mind, once more, that only four of the seven

18   guns were linked to the shootout, we are left with competing

19   explanations       as    to   why.     It   could    be    because       three   of   the

20   Defendants, while armed, simply elected not to shoot during the

21   shootout.      Or, it could also be that the Defendants who fired the

22   guns that were linked to the shootout also possessed additional

23   firearms    that     they     did    not   use    during   the    shootout.        Or   a


                                                -31-
 1   combination of these two things is also possible (e.g., two

 2   Defendants were unarmed, and two Defendants each possessed two

 3   guns, but only fired one).13        We thus conclude that there was not

 4   sufficient evidence for a rational jury to have concluded, beyond

 5   a reasonable doubt, that any of these scenarios was actually the

 6   case here.    See United States v. Flores-Rivera, 56 F.3d 319, 323

 7   (1st Cir. 1995) (reversal is required when "an equal or nearly

 8   equal theory of guilt and a theory of innocence is supported by

 9   the evidence viewed in the light most favorable to the prosecution,

10   [because in such a case] a reasonable jury must necessarily

11   entertain a reasonable doubt") (alteration in original).

12             In summary, as the only Defendants previously convicted

13   of felonies, to convict Otero-Márquez and Mendoza-Ortega on Count

14   One, the government needed to show that at least one of those two

15   possessed a firearm.       And, in the absence of any evidence that

16   either was more likely than the remaining Defendants to have

17   possessed firearms, to show that either of those two individuals

18   possessed a firearm, the government needed to put on sufficient

19   evidence that all seven Defendants did so.             To arrive at that

20   conclusion,   the   jury    would    have   had   to   first   infer   from


     13 It is also theoretically possible that the Defendants were not
     responsible for bringing the three unfired guns into the tunnel,
     and that those guns were already there when they reached the
     tunnel. We find this less probable, though.


                                         -32-
 1   circumstantial evidence that all seven Defendants were involved in

 2   the shootout in some capacity, and then reject the possibility

 3   that any of the Defendants possessed more than one firearm.                      Thus,

 4   upholding the jury's verdict would require us to sanction both

 5   stacking inferences and choosing between two "equal or nearly

 6   equal" theories.         Flores-Rivera, 56 F.3d at 323; see Burgos, 703

 7   F.3d at 10.       We decline to do so here, and hold that a rational

 8   fact-finder could not have found beyond a reasonable doubt that

 9   Otero-Márquez or Mendoza-Ortega possessed a firearm.                   We therefore

10   hold     that    the   district    court      erred    in    denying     those     two

11   individuals' motions for acquittal on Count One.

12                   III.   The Jury Instructions for Count Three

13               Having concluded that sufficient evidence supported the

14   Defendant-Appellants' Count Three convictions, we now take up the

15   question of whether the district court's jury instructions for

16   that Count were erroneous.14          At the end of the trial, Mendoza-

17   Ortega    filed    a     motion   requesting    that    the    district     court's

18   forthcoming       jury     instructions       reflect       Rosemond's     "advance

19   knowledge" requirement, see 134 S. Ct. at 1249.                    Otero-Márquez

20   joined that request at the charge conference.                On appeal, Mendoza-


     14  Because we conclude that insufficient evidence supported the
     Count One convictions, we need not reach the question of whether
     the district court's aiding and abetting instructions for Count
     One were erroneous.


                                            -33-
 1   Ortega and Pérez-Torres both assert that, because they failed to

 2   take   Rosemond   into    account,   the      district   court's    aiding   and

 3   abetting instructions for Count Three were erroneous.

 4               This argument having been duly preserved, we must now

 5   determine    de    novo    whether      the    requested    instruction      was

 6   "substantially covered by" the instruction that the district court

 7   actually gave.      United States v. Baird, 712 F.3d 623, 628 (1st

 8   Cir. 2013); see also United States v. Godin, 534 F.3d 51, 56 (1st

 9   Cir. 2008) (our review of whether a trial court's jury instructions

10   captured    the   elements   of   the    relevant    offense   is   de   novo).

11   Moreover, it is of no import that the jury returned a general

12   verdict here that did not distinguish between the principal and

13   aiding and abetting forms of the offense.           A general guilty verdict

14   cannot stand when it may have rested on constitutionally invalid

15   grounds.    See Griffin v. United States, 502 U.S. 46, 53 (1991)

16   ("[W]here a provision of the Constitution forbids conviction on a

17   particular ground, the constitutional guarantee is violated by a

18   general verdict that may have rested on that ground.") (citing

19   Stromberg v. California, 283 U.S. 359, 568 (1931)).

20               In light of the request made below, we must determine

21   whether the district court's instructions adequately captured and

22   impressed upon the jury Rosemond's requirement that to be guilty

23   of aiding and abetting an offense, a defendant must have had


                                          -34-
 1   advance knowledge of each element of the offense.              As Rosemond

 2   clarifies,    "advance   knowledge"   is   "knowledge   that   enables   [a

 3   defendant] to make the relevant legal (and indeed, moral) choice."

 4   134 S. Ct. at 1249.      That is, the would-be accomplice must know

 5   of the principal's plan to commit the underlying offense with

 6   sufficient anticipation to be able to "attempt to alter that plan

 7   or, if unsuccessful, withdraw from the enterprise."             Id.   Only

 8   then may aiding and abetting liability attach.

 9                Here, the district court instructed the jury that, to

10   find the Defendants guilty of Count Three in the aiding and

11   abetting modality, it needed to find, beyond a reasonable doubt,

12   first that a principal committed the crimes charged, and "[s]econd,

13   that the charged defendants consciously shared the other person's

14   knowledge of the crimes charged in the indictment, intended to

15   help each other, and took part in the endeavor, seeking to make it

16   succeed."

17                Whether this formulation runs afoul of Rosemond depends

18   on whether "seeking to make it succeed" applies to all of the

19   clauses that precede it, or only to its immediate predecessor:

20   "took part in the endeavor."    If it applies to all of the preceding

21   clauses, then we have no Rosemond problem because the instructions

22   would require the jury to find that an alleged aider and abettor

23   knew that the principal was to commit the crime of possessing a


                                       -35-
 1   gun in a school zone when he leant his assistance with the intent

 2   to make the criminal endeavor succeed.      That would be consistent

 3   with Rosemond's advance knowledge requirement.    But if the pronoun

 4   "it" in "seeking to make it succeed" refers only to "the endeavor,"

 5   then we do have a Rosemond problem.    In that case, the instructions

 6   would allow the jury to find a defendant guilty of aiding and

 7   abetting when the defendant (1) "took part in the endeavor, seeking

 8   to make it succeed" by (2) assisting the principal in bringing a

 9   gun to a particular location, and only then, upon realizing that

10   this location was in a school zone, (3) "consciously shared" the

11   principal's knowledge of the crime.     That is, this interpretation

12   of the instruction does not require the government to have proven

13   that the aider and abettor shared the defendant's knowledge of the

14   crime before or even at the moment when he chose to lend his

15   assistance.15   And that would conflict with Rosemond.




     15It may be helpful to visualize these alternative interpretations
     in this manner. The instructions comported with Rosemond if this
     is their proper interpretation: "that the charged defendants
     [(consciously shared the other person's knowledge of the crimes
     charged in the indictment, intended to help each other, and took
     part in the endeavor), seeking to make it succeed]."

       The instructions did not comport with Rosemond, though, if we
     interpret   them  this   way:   "that   the  charged   defendants
     [(consciously shared the other person's knowledge of the crimes
     charged in the indictment), (intended to help each other), and
     (took part in the endeavor, seeking to make it succeed)]."


                                     -36-
 1               This   second   possible      interpretation       seems    the    more

 2   likely of the two because the instruction uses the singular

 3   "seeking to make it succeed," making it unlikely that this clause

 4   was meant to apply to the entire list of things preceding it, which

 5   includes the plural "crimes charged in the indictment."                        At a

 6   minimum, it is distinctly possible that the jury interpreted the

 7   instructions this way.       As the Supreme Court has explained, when

 8   faced with ambiguous jury instructions, the proper inquiry is

 9   "'whether there is a reasonable likelihood that the jury has

10   applied the challenged instruction in a way' that violates the

11   Constitution."       Estelle     v.    McGuire,   502   U.S.    62,    72   (1991)

12   (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).                    And it

13   would indeed violate the Constitution if the jury convicted the

14   Defendants on Count Three without the government having proven all

15   of the offense's elements -- including "advance knowledge" --

16   beyond a reasonable doubt.            See Patterson v. New York, 432 U.S.

17   197, 210 (1977) ("[T]he Due Process Clause requires the prosecution

18   to prove beyond a reasonable doubt all of the elements included in

19   the definition of the offense of which the defendant is charged.").

20               Finally, before vacating convictions as the result of

21   instructional      error,   we   must    assess   whether      that    error    was

22   harmless.    See Koonce v. Pepe, 99 F.3d 469, 473 (1st Cir. 1996);

23   accord Hedgpeth v. Pulido, 555 U.S. 58, 61 (2008).                     When jury


                                            -37-
 1   instructions fail to account for an element of the crime charged,

 2   that error is harmless only if we can conclude "beyond a reasonable

 3   doubt that the omitted element was uncontested and supported by

 4   overwhelming evidence, such that the jury verdict would have been

 5   the same absent the error."        United States v. Pizarro, 772 F.3d

 6   284, 297-98 (1st Cir. 2014) (quoting Neder v. United States, 527

 7   U.S. 1, 17 (1999)).     Here, this does not allow us to conclude that

 8   the district court's instructional error was harmless.

 9               First, given the centrality at trial of the question of

10   whether the Defendants knew of the School's location, we cannot

11   describe    the   element   of   "advance       knowledge"    as    uncontested.

12   Moreover while we have concluded that, for Rule 29 purposes, a

13   rational fact-finder could have found that the Defendants knew or

14   should have known they were in a school zone, that requires far

15   less than "overwhelming" evidence.             In the end, we cannot say that

16   overwhelming evidence established that the Defendant-Appellants

17   had advance knowledge that the principal was to possess a firearm

18   within 1,000 feet of a school.          And so the error that infected the

19   district    court's   aiding     and     abetting       instructions     was   not

20   harmless.

21               To conclude, there is a "reasonable likelihood" that the

22   jury   interpreted    the   district          court's    aiding    and   abetting

23   instructions in a way that violates Rosemond.                See Estelle, 502


                                            -38-
1   U.S. at 72.   That error was not harmless.    See Pizarro, 772 at

2   297-98.   Therefore, because the jury's general verdict could have

3   rested on a constitutionally impermissible ground, see Griffin,

4   502 U.S. at 53, we must vacate the district court's judgments of

5   guilty as to Count Three for all of the Defendant-Appellants.16


    16 We have one last loose end to tie up. Not all of the Defendant-
    Appellants requested a Rosemond instruction below, and not all of
    them claim on appeal that the district court's aiding and abetting
    instructions were erroneous. But we do not think that this means
    that only those Defendant-Appellants who have raised this issue
    should have their convictions vacated. First, the government has
    not taken this position. See United States v. Burhoe, 871 F.3d
    1, 28 n.33 (1st Cir. 2017) (finding that the government had
    forfeited any argument that the defendants had waived a particular
    issue). The purpose behind our "waiver" doctrines also supports
    this conclusion. Appellate courts are typically loath to consider
    forfeited arguments for two reasons.      The first concerns our
    institutional role as a court of review: we review the decisions
    that a lower court (or agency) has actually made. See Miller v.
    Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2004) ("We
    have frequently said that we are a court of errors, and that a
    district court cannot have erred as to arguments not presented to
    it."); see also HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270,
    1281-82 (Fed. Cir. 2012) (emphasizing finality and judicial
    economy). The second justification stems from the idea that it
    is unfair to allow parties to surprise one another with new
    arguments that they did not make at the appropriate procedural
    juncture. See Prime Time Int'l Co. v. Vilsack, 599 F.3d 678, 686
    (D.C. Cir. 2010) (quoting Hormel v. Helvering, 312 U.S. 552, 556
    (1941)).

       But here, vacating the convictions of only those Defendant-
    Appellants who have raised the Rosemond issue would vindicate
    neither of those interests. The district court considered this
    issue and issued a ruling on it.     And the government -- both
    because this issue arose below and because some of the Defendant-
    Appellants took it up in their opening briefs -- certainly had
    sufficient notice of this issue at the appellate stage.        We
    therefore think that the district court's instructional error
    requires vacating all of the Defendant-Appellants' convictions on

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 1                                 IV.    Conclusion

 2              While the Defendant-Appellants have raised additional

 3   claims of evidentiary error and challenges to their sentences, we

 4   need not reach them.       See United States v. Sasso, 695 F.3d 25, 31

 5   & n.1 (1st Cir. 2012) (vacating because of instructional error and

 6   then   declining     "to   rule     gratuitously      upon    the   defendant's

 7   remaining assignments of trial and sentencing error" because "[i]t

 8   is unlikely that any of these claims will arise in the same posture

 9   if the case is retried").           With regard to Fernández-Jorge, the

10   district   court's    judgment      is    affirmed.    With    regard   to   the

11   Defendant-Appellants, the district court's judgment is reversed as

12   to Count One and vacated as to Count Three.

13              Affirmed, Reversed, and Vacated.



     Count Three. See United States v. Cardales-Luna, 632 F.3d 731,
     736 (1st Cir. 2011) (explaining it is in the interests of justice
     to treat "materially identical cases alike"); cf. Nat'l Ass'n of
     Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995)
     (appellate courts may exercise their discretion to forgive waiver
     when "the equities heavily preponderate in favor of such a step").
     Lastly, we note that other courts faced with similar situations
     have invoked Fed. R. App. P. 2 -- which authorizes courts to
     suspend other rules sua sponte -- to forgive a defendant's failure
     to incorporate by reference arguments advanced in a co-defendant's
     brief pursuant to Rule 28(i).    See United States v. Olano, 394
     F.2d 1425, 1439 (9th Cir. 1991), rev'd on other grounds, 507 U.S.
     725 (1993); United States v. Rivera-Pedin, 861 F.2d 1522, 1526 n.9
     (11th Cir. 1988) (invoking Fed. R. App. P. 2's authorization "to
     relieve litigants of the consequences of default where manifest
     injustice would result"); United States v. Gray, 626 F.2d 494, 497
     (5th Cir. 1980); United States v. Anderson, 584 F.2d 849, 853 (6th
     Cir. 1978).

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