Juan R. Sánchez, J.
Defendants Santos Centeno and Baldwin Centeno ask this Court for judgments of acquittal or alternatively, a new trial for their convictions of assault and robbery. They assert there was insufficient evidence to support the verdict and/or evidentiary error substantially influenced the verdict. For the reasons set forth below, the Court finds Defendants are not entitled to judgments of acquittal or a new trial, and their motions will be denied.
Defendants’ convictions stem from two separate incidents, both involving assault and robbery. First, on the evening of June 16, 2012, Ashish Lokhande was attacked, beaten, and robbed (June 16 incident). He has no memory of the event; a Park Ranger discovered him lying near the sidewalk on the west side of Fourth Street between Chestnut Street and Walnut Street in Philadelphia, Pennsylvania. Four days later, on the evening of June 20, 2012, Joseph Crumbock and his wife Dana Wilson were attacked, beaten, and robbed at the same location (June 20 incident). Defendants Santos Centeno and Baldwin Centeno were charged in a five count indictment for assault and robbery crimes arising out of these incidents. Each count also contained a charge for aiding and abetting.
On June 25, 2013, after a jury trial, Baldwin Centeno was found guilty on counts one and two, arising from the June 16 incident, and acquitted on counts three, four, and five. Santos Centeno was found guilty on counts one, two, four, and five, arising from both the June 16 and June 20 incidents, and acquitted on count three.
Both Baldwin and Santos Centeno ask this Court for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29 for convictions on counts arising from the June 16 incident. Santos Centeno separately requests a judgment of acquittal for his conviction on counts arising from the June 20 incident. Under Rule 29, the Court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). A district court must “review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (quoting United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002)). “A finding of insufficiency should be confined to cases where the prosecution’s failure is clear.” Id. (internal quotation marks omitted). Although there must be a logical and convincing nexus between the evidence and the guilty verdict, the “fact that evidence is circumstantial does not make it less probative.” Gov’t of V.I. v. Williams, 739 F.2d 936, 940 (3d Cir. 1984) (quoting United States v. Bycer, 593 F.2d 549, 550 (3d Cir.1979)). The motion for judgment of acquittal will be granted “only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted).
Defendants assert they should be acquitted because they were, at most, merely present during the assaults and robberies, and no reasonable jury could have concluded they were either principal participants or aider and abettors of the substantive offenses. In order to establish liability based on aiding and abetting, the Government must prove the defendant acted with the specific intent of facilitating the crime. United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999). “Mere knowledge of the underlying offense is not sufficient for conviction.” Id. The defendant must have associated himself with the venture and “sought by his actions to make it succeed; he must have been a participant and not merely a spectator.” United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).
With regard to the June 16 incident, Defendants maintain the only evidence tying them to the assault and robbery is the testimony of Christopher Robles, who travelled to Philadelphia with the Defendants and witnessed the incident while sitting in Baldwin Centeno’s car. Defendants contend his testimony is an insufficient basis for conviction for three reasons: First, Robles’s testimony is uncorroborated and highly suspect because he was intoxicated during the incident. Second, although he witnessed the attack, Robles could not specify who exactly hit the victim, and prior to testifying in front of the grand jury, he admitted telling two park rangers he never saw Baldwin Centeno hit anyone. Third, the Government should not have been allowed to treat Robles as a hostile witness and ask him leading questions during trial.
Baldwin Centeno also maintains that even though after the attack the assailants entered Baldwin Centeno’s car and he drove the car away from the scene, his driving the car does not mean he participated in the substantive offenses; he was the only person able to drive because he not drinking and he wanted to remove himself and his car from a dangerous situation. Santos Centeno argues the fact he did not drive the car is further proof he was at most merely present and did not participate in the attack.
These arguments are not availing. As to Robles’s testimony, the jury could (and did) evaluate it themselves and decide how much weight it deserved. Robles stated several times that during the June 16 incident, Baldwin and Santos Cento were “around” or “near” the victim. See, e.g., Trial Tr. 58, 64, 65, 69, June 20, 2013. He also stated that Defendants were part of the group of people who attacked the victim and no one else was around the victim at the time. Id. at 65, 70, 74. Further, Defendants, and the other people in the group, returned to and drove away in Baldwin Centeno’s car immediately after the victim fell to the ground. Id. at 80-82. Aside from Robles’s testimony, the jury could rely upon the video surveillance of a car similar to Baldwin Centeno’s car leaving the scene of the crime at a high rate of speed and FBI Agent Wendell Cosenza’s testimony that signals from Lokhande’s phone placed it in Camden, New Jersey, near both of the Defendants’ homes, hours after the attack. In addition, even though Santos Centeno did not drive the getaway car after the attack, the jury could consider the similarities of the June 16 incident and June 20 incident (both occurred at the same location and involved the same type of crime) and the fact several eyewitnesses established Santos Centeno’s presence at the scene on June 20, and infer Santos Centeno did not participate in the June 16 incident by mistake or accident. They jury could also use evidence of the June 20 incident when determining whether Santos Centeno committed the June 16 incident because the June 20 incident exhibited his characteristic modus operandi or method of operation.
During oral argument on the motion for judgment of acquittal as to counts one and two, Defendants repeatedly stressed the Court should grant judgments of acquittal based on United States v. Barber, 429 F.2d 1394 (3d. Cir. 1970). In that case, the Third Circuit found the evidence was insufficient to sustain the defendant’s conviction for aiding and abetting criminal misconduct and reversed the district court’s denial of his motion for judgment of acquittal. Id. at 1397. The only evidence against the defendant was the fact he was one of a large group that approached and confronted officers just before an outbreak of violence. Id. The Court explained although a jury could properly find the defendant was present during the attack, there was no proof he used threatening words or gestures, displayed weapons, or performed any other sinister act. Id. at 1396. Further, the record did not indicate if the defendant joined the group out of simple curiosity or some more aggressive intention, and the key eyewitness misidentified him. Id. at 1396-97. In reaching its decision, the Court stressed “mere presence at the scene of a crime, even in the company of one or more principal wrongdoers, does not alone make one an aider or abetter.” Id. at 1397.
This case is distinguishable from Barber in many ways. First, Barber involved a group of fifteen people, whose relationship to each other was not clear, whereas here, the group consisted of only five people, and, according to Robles, the members were friends (or “associates”) with each other. Robles also testified no one outside of this small group was near or around the victim during the incident. In addition, circumstantial evidence shows Defendants were more than merely present during the June 16 incident. Defendants arrived at the scene of the incident together and the entire group, including Defendants, fled the scene together. The victim’s cellphone indicated it was near Defendants’ homes hours after the attack. Perhaps most importantly, Baldwin Centeno drove the assailants away in his car and Santos Centeno was identified by eyewitnesses in a very similar attack four days later. This evidence, in addition to direct evidence establishing Defendants’ presence during the June 16 incident (namely, Robles’s testimony), differentiates the situation in this case from that in Barber.
Thus, a reasonable juror could have found Defendants intimidated the victim and emboldened the other assailants, Defendants blocked the escape of the victim, and/or Defendants enabled the flight of the other perpetrators, all of which would be sufficient to establish aiding and abetting liability. Because there is plenty of evidence upon which a reasonable juror could conclude Defendants were direct participants or aiders and ...