United States Court of Appeals For the First Circuit

No. 20-1953

UNITED STATES OF AMERICA,

Appellee,

v.

DIOVANNI CARTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Howard, Chief Judge, Barron, Circuit Judge, and Singal, District Judge.

Joshua L. Solomon, Barry S. Pollack, and Pollack Solomon Duffy LLP were on brief, for appellant. Karen Eisenstadt, Assistant United States Attorney, and Nathaniel R. Mendell, Acting United States Attorney, were on brief, for appellee.

December 2, 2021

 Of the District of Maine, sitting by designation. SINGAL, District Judge. A jury convicted defendant-

appellant Diovanni Carter of conspiracy to commit Hobbs Act

robbery, the robbery itself, and discharging and brandishing a

firearm during and in relation to a crime of violence. Carter

appeals his convictions, claiming that the district court

impermissibly admitted hearsay evidence and improperly instructed

the jury on vicarious liability. Carter also challenges his

sentence as stemming from an erroneous application of the official-

victim adjustment in United States Sentencing Guidelines § 3A1.2.

Finding no error, we affirm the convictions and sentence.

I.

We first recite the facts relevant to Carter's appeal

"in the light most agreeable to the verdict, consistent with record

support." United States v. Walker,

(1st Cir.

2011). On January 26, 2019, Carter and three associates robbed a

T-Mobile store in Brockton, Massachusetts. One associate was

Darius Carter ("Darius"), Carter's brother. A second associate,

Dennis Martin, would later cooperate with law enforcement and

testify against Carter. The group stole approximately $20,000

worth of hardware and $4,500 in cash from the store. One stolen

phone contained a GPS tracking device, which led the police to the

group's getaway car.

A car chase with the police ensued. According to the

government and Martin's testimony, Carter handed one of his

- 2 - associates a gun while driving the getaway vehicle and instructed

his associates to shoot at the police. Two of the associates then

shot at the pursuing cruiser. The car chase ended, and all four

occupants of the vehicle fled on foot. Police located all of

Carter's associates the same evening, but were unable to locate

Carter himself. After five weeks, police found and arrested

Carter. On the day of Carter's arrest, Darius called his parents

from jail and indirectly implicated Carter in the robbery in a

recorded conversation.

A grand jury indicted Carter on five counts: (1)

conspiracy to interfere with commerce by robbery; (2) interference

with commerce by robbery; (3) carrying, using, discharging, or

brandishing a firearm in relation to a crime of violence; (4)

possession of a firearm and ammunition by a felon; and (5)

possession of a firearm by a felon.

At trial, the government played excerpts of Darius'

recorded jailhouse call with his parents. The government also

relied on two vicarious liability theories -- aiding and abetting

liability under

, and co-conspirator liability under

Pinkerton v. United States,

(1946) -- to argue that

Carter was guilty of Count Three. A jury convicted Carter on

Counts One, Two, and Three, but acquitted him of Counts Four and

Five. The jury returned a special verdict form specifically

finding that a firearm was (a) brandished and (b) discharged during

- 3 - the robbery.

The district court sentenced Carter to 150 months of

imprisonment on Counts One and Two, and 120 months on Count Three,

to run consecutively. This appeal followed.

II.

Carter raises three issues before this Court. He

challenges all three of his convictions on the basis that the

district court impermissibly admitted hearsay evidence in the

recording of Darius' jailhouse call. He also challenges his

conviction on Count Three, averring that the district court's jury

instructions erroneously stated the requirements of aiding-and-

abetting and Pinkerton liability. Separately, Carter requests

that we vacate his sentence for the robbery and underlying

conspiracy because the district court misinterpreted the

applicable Sentencing Guidelines.

A.

We turn first to the evidentiary objection. Carter

argues that the district court's introduction of Darius' jailhouse

phone call implicating him in the robbery violated the hearsay

prohibition in the Federal Rules of Evidence.1 The parties agree

1 The district court admitted the following statements: "Whenever you all speak to that kid Dio, just let that n**** know, keep his f***ing mouth closed. Don't even be talking . . . We already got the n****, co-d [Martin] snitching, so. That's the, that's the most we need right now. So that n**** don't need . . . He don't need to be running his mouth, telling - 4 - that the first two sentences of Darius' statements, consisting of

an explicit instruction to tell Carter not to speak, are not

hearsay and thus are not before us on appeal. See United States

v. Murphy,

(1st Cir. 1999). Accordingly, we consider

only the second part of the call that was admitted at trial.

Carter argues that the statements in question were

straightforward hearsay because they were offered to prove the

truth of the matter Darius asserted. Alternatively, Carter

alleges that the same statements constituted hearsay because they

were offered to prove the truth of the matter they necessarily

implied (a so-called "implied assertion"). See United States v.

Diaz,

(1st Cir. 2010). However, both of these

arguments fail because Carter waived all hearsay objections before

the trial court below.

Waiver is the intentional relinquishment or abandonment

of a right. See United States v. Rodriguez,

(1st Cir. 2002). An argument is waived when a party "purposefully

abandons it, either expressly or by taking a contrary position at

trial." United States v. Chen,

(1st Cir. 2021).

"Once waived, a claim typically is 'dead and buried; it cannot

thereafter be resurrected on appeal.'" United States v.

Tkhilaishvili,

(1st Cir. 2019) (quoting United

nobody about the case, nothing." Appellant Add. at 16.

- 5 - States v. Eisom,

(1st Cir. 2009)).

Carter waived his hearsay objections to the jailhouse

call when his trial counsel stated "all I agree is it's not

hearsay" at the final pre-trial conference. Gov. Add. at 23. At

the conference, the district court began the relevant portion of

the conversation with a reference to Darius' statements that

followed the first two sentences: "I'm not sure about the comment

about the co-defendant snitching." Id. at 20. Counsel for each

side proceeded to discuss the co-conspirator exception to the

hearsay rule, a ground for admission the district court rejected.

See Appellant Add. at 12–13. After denying admission as a co-

conspirator statement, the court stated, "you can have the comment,

which is not admitted for the truth of the matter asserted." Gov.

Add. at 22-23. Defense counsel stated, "I don't agree to anything,

Your Honor . . . all I agree is it's not hearsay." Id. at 23.

The court confirmed, "It's not hearsay. You want to make a

relevance –-" and defense counsel interrupted, "Yeah, it's not

relevant." Id. Defense counsel then pivoted to an objection

based on the statements' alleged irrelevance to the issue of

Carter's guilt. Read in the context of the entire conversation,

this statement by Carter's defense counsel is best understood to

refer to the portion of the excerpt at issue here. Thus, Carter

waived any hearsay objection to that portion of the call.

Carter's argument against waiver is unconvincing.

- 6 - Carter disputes the "comment" to which the district court was

referring in the pre-trial conference. As described above,

though, the district court's conversation with counsel leaves

little doubt about the relevant statement when examined as a whole.

Defense counsel first stated that he agreed to nothing but then

immediately ceded his hearsay objection. But the statement "I

agree . . . it's not hearsay" is quite clear when read alongside

counsel's immediate transition into an objection based on a

different evidentiary principle, relevance. Were there any doubt,

counsel failed to object to the court's confirmatory statement,

"It's not hearsay."

We conclude that defense counsel's agreement operates to

foreclose any revived hearsay objection on appeal, whether

concerning direct or implied assertions. We add that even if the

district court's decision to admit the contested statements was

error, it was harmless beyond a reasonable doubt. See United

States v. Sepulveda,

(1st Cir. 1993) ("Because

the record offers every assurance that the errant statements did

not affect the trial's outcome, they were harmless.").

A sizeable body of other evidence introduced by the

government served to establish Carter's participation in the

robbery. Martin, the co-defendant to whom Darius referred in his

call as "already . . . snitching," identified Carter as a

participant in his trial testimony. The government introduced

- 7 - cell phone tower records placing Carter in the vicinity of the

robbed T-Mobile store and showing him at a distance from the tower

consistent with the location of the stolen phone's GPS tracker.

The government also introduced a rental agreement for the escape

vehicle signed by Carter, and two pieces of mail addressed to

Carter that police found in the escape vehicle. We conclude that

any impermissible inference of guilt drawn from Darius' statements

was "a drop in the proverbial bucket," and thus decline to disturb

Carter's convictions on this basis.

B.

Focusing on Count Three, Carter urges us that the

district court's jury instructions were incorrect or misleading as

to the two theories of vicarious liability -- aiding and abetting

liability and Pinkerton liability -- for a firearm offense under

(c). 2 The district court's instructions are

2 The relevant excerpts of the jury charge are as follows: "[U]nder 'Pinkerton,' the defendant can be found guilty if the government proves beyond a reasonable doubt that the defendant conspired to commit the underlying crime and knew that it was reasonably foreseeable that the underlying crime would be committed by a co-conspirator. For this offense, it must have been reasonably foreseeable to the defendant that a co-conspirator would use, carry, brandish, or discharge the firearm during the commission of the robbery. . . . [T]he defendant may be found guilty as an aider and abettor if the government proves beyond a reasonable doubt that the defendant took an affirmative step to help or cause the crime to be committed, and intended that the crime be committed by - 8 - reviewed for plain error because Carter did not raise a relevant

objection to them below. See United States v. Latorre-Cacho,

(1st Cir. 2017).

Under the plain-error standard, Carter "faces the heavy

burden of showing (1) that an error occurred; (2) that the error

was clear or obvious; (3) that the error affected his substantial

rights; and (4) that the error also seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings."

(quoting United States v. Prieto,

(1st Cir. 2016)) (internal quotation marks omitted). "[T]he

plain error hurdle, high in all events, nowhere looms larger than

in the context of alleged instructional errors." United States

v. Rivera-Carrasquillo,

(1st Cir. 2019) (quoting

United States v. Paniagua-Ramos,

(1st Cir. 2001))

(internal quotation marks omitted). An allegedly flawed jury

instruction is viewed not in isolation, but in context within the

entire charge. See United States v. Pennue,

(1st Cir. 2014). Where, as here, a defendant alleges that the

jury instructions were ambiguous or confusing, we ask whether "the

instructions as a whole . . . adequately explain the law without

another . . . To find the defendant guilty of aiding and abetting the crime of using, carrying, brandishing, or displaying [sic] a firearm during and in relation to a crime of violence, the government must prove that the defendant knew the firearm would be used, carried, brandished, or discharged . . . during the commission of the crime of violence." Appx-1314.

- 9 - confusing or misleading the jury." United States v. Troy,

(1st Cir. 2010).

The district court's alleged fault here was a failure to

instruct the jury unambiguously on the issues of advance knowledge

under

and of reasonable foreseeability under

Pinkerton. We reject both arguments, finding that the district

court correctly instructed the jury on the requisite mens rea for

both forms of vicarious liability, as the instructions properly

conveyed the substantive legal content and were not confusing or

misleading in context.

The mens rea generally required of an aider-and-abettor

under

is intent that the crime be committed. See

Rosemond v. United States,

(2014). Additionally,

when a defendant "actively participates in a criminal scheme

knowing its extent and character," he "intends that scheme's

commission."

. Put otherwise, advance knowledge may

satisfy the intent requirement in the aiding-and-abetting context.

Carter's counsel conceded at oral argument that the district

court's description of aiding-and-abetting liability in the

abstract adequately covered this principle. See Appx-1314.

We have accordingly held that to be guilty of aiding and

abetting the offense of brandishing a firearm during a Hobbs Act

robbery, the government must prove that an alleged aider and

abettor knew to "a practical certainty" that a firearm would be

- 10 - brandished. United States v. López-Soto,

(1st Cir.

2020) (quoting United States v. Spinney,

(1st

Cir. 1995)) (internal quotation marks omitted). The district

court correctly restated this law to the jury when it explained

that the jury could find Carter to have aided and abetted a section

924(c) offense only if it found that he "knew the firearm would be

used, carried, brandished, or discharged." Appx-1314.3

Carter claims that aiding-and-abetting liability for a

firearm discharge requires equivalent advance knowledge. We

acknowledge the government's argument that such knowledge may not

be required. See Dean v. United States,

(2009)

3 We note that our invocation in López-Soto of knowledge "to a practical certainty" corresponds to a conventional understanding of "knowledge" that future events will come to pass. See United States v. Powell,

(D.C. Cir. 1991) ("Given the imperfection of human knowledge, [practical certainty] is the equivalent of knowledge; an accomplice 'knows' an act will happen if he is 'practically certain' it will.") (cited favorably in United States v. Torres-Maldonado,

(1st Cir. 1994)). Our precedent distinguishes "practical certainty" from a lower threshold of constructive knowledge. Compare United States v. Sanborn,

(1st Cir. 1977) ("[T]o convict an aider and abettor of [aggravated robbery] we think the Government must show that the accomplice knew a dangerous weapon would be used or at least that he was on notice of the likelihood of its use.") (emphasis added), with United States v. Spinney,

(1st Cir. 1995) ("[T]he Sanborn court's formulation of the shared knowledge requirement . . . stands in marked contrast -- almost as point and counterpoint -- to the 'practical certainty' formulation that courts have developed for assessing the shared knowledge requirement applicable to aiding and abetting firearms charges brought under

(c).").

- 11 - (concluding that, for principals, "[t]he 10–year mandatory minimum

applies if a gun is discharged in the course of a violent or drug

trafficking crime, whether on purpose or by accident."). We

nevertheless have no occasion to resolve this issue today, as the

district court instructed the jury that aiding-and-abetting

liability for a firearm discharge does require advance knowledge.

If an accidental discharge imposes liability on an aider-and-

abettor, the error in the district court's instruction favored the

defendant and thus is no ground for reversal.

Carter also argues that the district court's

instructions to the jury on foreseeability under Pinkerton were

deficient. Liability as a co-conspirator under Pinkerton requires

the government to show the defendant had not advance knowledge,

but the less stringent threshold of reasonable foreseeability.

See United States v. Vázquez-Castro,

(1st Cir.

2011). Thus, the government had to prove it was reasonably

foreseeable to Carter that a firearm would be brandished or

discharged to find him liable under Pinkerton for brandishing or

discharging, respectively. The district court appropriately noted

that Pinkerton liability attaches when a defendant conspires to

commit a crime and it is reasonably foreseeable that the crime

will be committed by a co-conspirator. As Carter conceded at oral

argument, these instructions in the abstract were correct. We are

unable to discern how, when applied to the specific acts giving

- 12 - rise to a section 924(c) violation, the district court's

instructions became incorrect. We thus hold that the instructions

were not erroneous.

Carter fails to persuade us that the district court's

use of the disjunctive "or" confused or misled the jury. The

district court explained that federal law punishes "the crime of

brandishing, discharging, using, or carrying a firearm during and

in relation to a crime of violence." Appx-1312. After properly

explaining Pinkerton liability in the abstract, the court

explained that in context the jury would be required to find that

the defendant could reasonably foresee that a "co-conspirator

would use, carry, brandish, or discharge the firearm." Appx-1314.

The court's instructions as to aiding-and-abetting liability

similarly listed the four predicate acts under section 924(c) using

"or." Appx-1315. As the government notes in its briefing, it is

natural to understand the reasonable foreseeability or advance

knowledge of each act as corresponding with the eventual commission

of the relevant act.

Nor do we think the district court's reference to a

section 924(c) offense as "the crime" in the singular was confusing

or misleading. Section 924(c) penalizes four distinct acts:

carrying, using, brandishing, and discharging. To be punished

under the statute, a defendant need only commit one act. The

district court's description of "the crime" was thus quite clear.

- 13 - To use the plural form "the crimes" instead would cause greater

confusion than the instructions given could have produced. In

sum, when juxtaposed with the district court's abstract

expressions of Pinkerton and aiding-and-abetting liability, the

applied instructions clearly explained the relevant law.

Though the district court once misstated one of the

correct verbs giving rise to a penalty under

(c),

such a "lapsus linguae" does not rise to the level of reversible

error. Pennue,

. Once in instructing the jury,

the district court substituted the term "displaying" for

"discharging." Appx-1314-15. This misstatement was not

prejudicial error because the context of the instructions as a

whole made abundantly clear the meaning of the instruction. On

multiple other occasions, the district court correctly gave the

list of section 924(c) predicates. See Appx-1312, 1314, 1317,

1318. Under these circumstances, we cannot conclude that the jury

was misled by the district court's single use of "displaying."4

Because the district court correctly instructed the jury

on the two relevant theories of vicarious liability for a violation

of section 924(c), we affirm Carter's conviction for that offense.

4 The other aspects of the jury instructions that Carter contests on similar grounds likewise fail to meet the plain-error hurdle.

- 14 - C.

The final issue in Carter's appeal is his claim that the

district court incorrectly calculated the total offense level for

his robbery-related offense group by including the official-victim

adjustment that appears at U.S.S.G. § 3A1.2(c)(1). Because the

district court's decision to include the adjustment was based on

its legal interpretation of the Sentencing Guidelines, we review

that decision de novo. See United States v. Carrero-Hernández,

(1st Cir. 2011).

Under U.S.S.G. § 2B3.1, the base offense level for

Carter's grouped Hobbs Act robbery offenses (conspiracy and

robbery itself) is 20. The district court added six points to

this offense level by applying U.S.S.G. § 3A1.2(c)(1), which

permits such an addition when the victim of the offense is a law

enforcement officer. In this case, the relevant victim was one

of the police officers targeted by Carter's associates during the

post-robbery car chase.

Carter takes the position that application of the

adjustment is barred by Application Note 4 to U.S.S.G. § 2K2.4,

the Sentencing Guideline corresponding with Carter's firearm

offense. 5 Note 4 prohibits the application of "any specific

offense characteristic for possession, brandishing, use, or

5 Note 4 is also known as "Amendment 599," the name under which the Sentencing Commission promulgated the relevant text.

- 15 - discharge of an explosive or firearm" when a defendant is also

sentenced for an underlying offense (here, the Hobbs Act robbery).

When calculating a defendant's guideline sentencing range, a

district court is obliged to give "controlling weight" to

Sentencing Guideline application notes unless they are "plainly

erroneous or inconsistent with the [Guidelines]." Stinson v.

United States,

(1993) (quoting Bowles v. Seminole

Rock & Sand Co.,

, 414 (1945)) (internal quotation

marks omitted). Ordinary principles of statutory interpretation

apply to terms used in Sentencing Guideline application notes.

Cf. United States v. Luna-Díaz,

, 3 (1st Cir. 2000).

The district court did not err in applying the official-

victim adjustment because "specific offense characteristic" is a

term of art referring to modifications that appear in Chapter Two

of the Guidelines, alongside offense-specific base offense levels.

For example, the Guideline for robbery provides a base offense

level of 20, to which increases or decreases may be made if any

"specific offense characteristics" apply. See U.S.S.G.

§ 2B3.1(a), (b). In contrast, Chapter Three, Part A -- where the

official-victim adjustment is found -- contains adjustments to

offense levels that "may apply to a wide variety of offenses."

U.S.S.G., ch. 3, pt. A, introductory commentary.

The remainder of Note 4 provides context that further

supports a reading of "specific offense characteristic" as meaning

- 16 - an offense-level modification found in Chapter Two. The second

sentence of the Note states "[a] sentence under this guideline

accounts for any explosive or weapon enhancement for the underlying

offense of conviction, including any such enhancement that would

apply based on conduct for which the defendant is accountable under

§ 1B1.3 (Relevant Conduct)."

Carter takes this mention of section 1B1.3 to mean that,

because the section specifies that particular conduct is relevant

to both Chapters Two and Three, Note 4 rules out modifications

that appear in both Chapters. Carter's understanding of Note 4

is inverted. Note 4's second sentence explains that U.S.S.G.

§ 2K2.4 already accounts for weapon enhancements -- that is, the

"possession, brandishing, use, or discharge of an explosive or

firearm." The official-victim adjustment applies not because the

defendant used an explosive or weapon, but rather because the

defendant targeted a particular type of person: a law enforcement

officer. Insofar as the Guidelines penalize separate aspects of

the same conduct differently, this result is neither surprising

nor impermissible. See United States v. Fiume,

(1st Cir. 2013) ("Multiple sentencing adjustments may derive from

the same nucleus of operative facts while nonetheless responding

to discrete concerns. Thus, in the absence of an express

prohibition, this court routinely has permitted a single

underlying fact to be used more than once when that fact bears

- 17 - upon two separate sentencing considerations.") (internal quotation

marks and citations omitted).

Other uses of the term "specific offense characteristic"

within the Guidelines confirm that it refers to Chapter Two

calculations, not adjustments in Chapter Three. The term appears

verbatim numerous times in Chapter Two as a source of substantive

sentencing guidance, yet is absent from Chapter Three but for

references to other sections that stand in contrast to

"adjustments" in Chapter Three. See, e.g., U.S.S.G. § 2A1.5(b)

("Specific Offense Characteristic"); id. § 2A2.1(b) (same in

plural); id. § 2A2.2(b) (same); id. § 3D1.3 commentary n. 3

("Determine whether the specific offense characteristics or

adjustments from Chapter Three, Parts A, B, and C apply[.]").

Likewise, two of the "General Application Principles"

that govern the Guidelines as a whole reflect the premise that

"specific offense characteristics" are found in Chapter Two. The

Guidelines' "Application Instructions" require first that a

district court "[d]etermine the base offense level and apply any

appropriate specific offense characteristics . . . in the

particular guideline in Chapter Two in the order listed."

U.S.S.G. § 1B1.1(a)(2). Only then should the court "[a]pply the

adjustments as appropriate related to victim, role, and

obstruction of justice from Parts A, B, and C of Chapter Three."

Id. § 1B1.1(a)(3). Neighboring Guideline § 1B1.3, titled

- 18 - "Relevant Conduct," distinguishes between "specific offense

characteristics . . . in Chapter Two" and "adjustments in Chapter

Three."

The text and context of Note 4 to U.S.S.G. § 2K2.4 leave

us with little doubt that it does not bar application of the

official-victim adjustment at U.S.S.G. § 3A1.2(c)(1). Decisions

of our sister circuits are in accord with this conclusion. See

United States v. Dougherty,

(11th Cir. 2014);

see also United States v. Barnes,

, 518 (6th

Cir. 2019). For these reasons, the district court did not err in

its legal determination that the adjustment was permissible.

Finding no error in the district court's Sentencing Guideline

calculation, we affirm Carter's sentence for his grouped Hobbs Act

robbery offenses.

III.

For the reasons stated above, Carter's convictions and

sentence are

Affirmed.

- 19 -