Argued June 3, 2015
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Nos. 2-12-cr-00634-001, 2-12-cr-00634-002). District Judge: Honorable Juan R. Sanchez.
Brett G. Sweitzer, Esq. [ARGUED], Federal Community Defender Office, Philadelphia, PA, Counsel for Appellant (No. 14-2024).
Elizabeth Plasser Kelly, Esq. [ARGUED], 256 Eagleview Boulevard, Exton, PA, Counsel for Appellant (No. 14-2690).
Denise S. Wolf, Esq. [ARGUED], Office of the United States Attorney, Philadelphia, PA, Counsel for Appellee.
Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.
SHWARTZ, Circuit Judge.
Baldwin and Santos Centeno appeal their convictions and sentences arising from violent assaults at the Independence National Historical Park in Philadelphia. Each challenges the sufficiency of the evidence supporting his convictions. In addition, Baldwin argues that his conviction must be reversed due to a constructive amendment of the Indictment and, in any event, that his sentence must be vacated due to the District Court's failure to personally address him before imposing its sentence. Finally, each contends that one conviction violates the Double Jeopardy Clause and must be vacated. We conclude that the evidence is sufficient to support the convictions but, with respect to Baldwin, the Government's rebuttal summation advocated a basis for conviction that was not charged in the Indictment and resulted in a constructive amendment, requiring that we vacate his convictions and remand for a new trial. As to Santos, we agree with the parties that one of his assault convictions violated the Double Jeopardy Clause so we will vacate that single conviction and remand for resentencing.
The charges arise from incidents that occurred on June 16 and 20, 2012. Around 1:00 a.m. on June 16, 2012, Ashish Lokhande was found lying in a pool of blood on the sidewalk in Independence National Historical Park. Lokhande could not recall being assaulted or ever seeing either Baldwin or Santos. He remembered only having been to work that day and waking up in the hospital days later. Lokhande testified that his " normal routine" for a Friday evening was to drive his car into Philadelphia to go salsa dancing and that he typically parked his car around Fifth and Market Streets, near Independence National Historical Park.
Christopher Robles was with Baldwin and Santos on the night of the assault. Robles testified that he, Baldwin, and Santos drove from Santos's apartment in Camden, New Jersey into Philadelphia, using Baldwin's four-door sedan with a black hood that did not match the color of the rest of the car. After they parked, Santos and Baldwin exited the car and Robles remained in the backseat.
Shortly thereafter, three men joined Baldwin and Santos. Robles testified that Baldwin and Santos leaned against the car while the three men paced back and forth along the sidewalk. The group talked, drank, and laughed. Eventually, a man approached Baldwin and Santos and asked if they could help him locate his car. Robles testified that he then saw the man " being attacked," App. 431, which included being hit and punched.
Robles testified that Baldwin and Santos were " around" the victim, App. 432, 435, and were " in the group of five that attacked" him, App. 444. Robles further admitted that " any" or " all" " of [the] five men" could have attacked the victim, that he did not see who struck him, App. 443-44, and that he could not say whether Baldwin or Santos were " looking or hitting," App. 508-09.
After the attack, Baldwin, Santos, and the three other men yelled " let's go" and quickly " ran" to Baldwin's car. App. 448, 451, 455. As they drove away, Robles saw the victim lying on the ground, bleeding. Video surveillance tape from a nearby building showed a gold or tan Ford Taurus with a black hood leaving the scene of the assault at approximately 12:50 a.m. on June 16, 2012. According to Robles, Baldwin drove the car back to Camden. Cell tower records showed that Lokhande's cell phone was in Camden hours later.
Four days later, on June 20, 2012, Santos and Baldwin returned to Independence National Historical Park and encountered Joseph Crumbock and his wife, D.W. Around 10:15 p.m., Crumbock and D.W. were walking in the same location where Lokhande had been assaulted. Crumbock and his wife saw " four guys standing around [a] car," App. 515, " just staring [them] down," App. 559. After they walked approximately ten to fifteen feet past the men, Santos " came running at" Crumbock, App. 517, " calling [him] names," and pushing and punching him. App. 518. Crumbock testified that the other three men came over and " surrounded" him and that " two of them jumped on [his] back" and " punched [him] in the face." App. 519-20. Crumbock's cell phone and wallet were stolen during the attack.
While on the ground, Crumbock saw Santos " standing over" D.W., who " was screaming on the ground." App. 520. Crumbock recalled that his wife's face " was all bloody" and that she was " crying and screaming," App. 521, as Santos attempted to " drag her across the sidewalk" using the strap on her pocketbook, App. 524-25. D.W. testified that she fell to the ground after Santos punched her in the mouth.
A U.S. Park Ranger heard D.W.'s screams, exited his station, and saw " a man dragging a woman . . . in the middle of [the] Street." App. 651. He yelled " stop, police," and ran after the man, App. 652, who " got into the rear passenger" side of a gold or tan four-door 2003 Ford Taurus with a black hood later determined to be registered to the mother of Baldwin's child, App. 652, 656, 710-11, 716-18. Two days later, law enforcement stopped the car in Camden with Baldwin, Santos, and Robles inside.
A grand jury returned a five-count Indictment against the Centenos. For the June 16, 2012 incident, the Indictment charged the Centenos with: (1) knowingly assaulting, and aiding and abetting assault, " resulting in serious bodily injury" to Lokhande in violation of 18 U.S.C. § § 113(a)(6), 2 (Count One); (2) knowingly assaulting, and aiding and abetting assault, by " striking, beating or wounding" Lokhande in violation of 18 U.S.C. § § 113(a)(4), 2 (Count Two); and (3) knowingly taking, and aiding and abetting the taking of, property belonging to Lokhande by force and violence and intimidation in violation of 18 U.S.C. § § 2111, 2 (Count Three). App. 30-32. As to the June 20, 2012 incident, the Indictment charged the Centenos with: (1) knowingly assaulting, and aiding and abetting assault, " by striking, beating [or] wounding" Crumbock and D.W. in violation of 18 U.S.C. § § 113(a)(4), 2 (Count Four); and (2) taking, and aiding and abetting the taking of, property belonging to Crumbock and D.W. " by force and violence[, or] by intimidation" in violation of 18 U.S.C. § § 2111, 2 (Count Five). App. 33-34.
The Centenos proceeded to trial. In his summation, Baldwin's counsel argued that there was no evidence that Baldwin actually assaulted Lokhande, or that he was even " driving the car that night." App. 908. His counsel also argued that " get[ting] in your car" and " leaving quickly" do not constitute aiding and abetting. App. 913. ...