robberies, Diaz's testimony establishes that it was certainly foreseeable that a gun would be used. From this evidence, the jury could reasonably conclude that Defendants conspired to rob the jewelry stores and that it was foreseeable to them that firearms would be used. Unlike the facts of Castaneda, application of Pinkerton to the § 924(c) charges resulted in no due process violation here.
3. Sufficiency Of The Evidence
Defendants argue that the Government's evidence was insufficient to establish either an agreement to commit the robberies or that Defendants aided and abetted the robberies.
Where a Rule 29 motion attacks the sufficiency of the evidence, it is "well settled that the test for determining whether to grant such a motion 'is whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in light favorable to the Government.'" United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977) (quoting United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir. 1972) (alteration added by Rojas). It is also "well settled that a district court does not have unlimited discretion in resolving a Rule 29(c) motion for judgment of acquittal." United States v. Dreitzler, 577 F.2d 539, 545 (9th Cir. 1978), cert. denied, 440 U.S. 921, 59 L. Ed. 2d 473, 99 S. Ct. 1246 (1979). Rather, "a district court must bear in mind that 'it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.'" Rojas, 554 F.2d at 943 (quoting United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969)). "The uncorroborated testimony of an accomplice, although suspect, can support a conviction. This is 'the rule even though the accomplice is in a position to gain favors from the government by his testimony . . . and even though there are inconsistencies in his story . . . so long as it is not incredible or unsubstantial on its face.'" United States v. Shelton, 588 F.2d 1242, 1245 (9th Cir. 1978) (quoting Lyda v. United States, 321 F.2d 788, 794-95 (9th Cir. 1963) (internal quotation marks omitted), cert. denied, 442 U.S. 909 (1979).
As set forth above, the Government presented sufficient evidence from which a reasonable juror could conclude beyond a reasonable doubt that Defendants agreed to commit the jewelry store robberies. Also, the jury reasonably could have concluded that Defendants induced through monetary payments the commission of the robberies and, therefore, that Defendants were guilty of aiding and abetting the robberies. In sum, the evidence was sufficient to support the conspiracy conviction and the convictions on substantive Hobbs Act counts on either a Pinkerton or aiding and abetting theory.
For the reasons set forth above, Defendants' motions for judgment of acquittal are denied. The Court now turns to Defendants' motion for a new trial.
B. Defendants' Motion For A New Trial
Defendants present five grounds in support of their motion for a new trial: (1) the Court failed to instruct the jury on the mens rea element of robbery under the Hobbs Act; (2) the Court erroneously admitted hearsay statements under the co-conspirator exception to the hearsay rule; (3) the court erroneously failed to give the jury unanimity and multiplicity instructions; (4) the prosecutor impermissibly commented upon defendant Redondo's invocation of his Fifth Amendment right not to testify; and (5) the weight of the evidence was against the jury verdict.
1. Mens Rea Element Of Robbery Under The Hobbs Act
Defendants argue that the Court failed to instruct the jury on the mens rea required for robbery under the Hobbs Act. Specifically, Defendants argue that a Hobbs Act robbery requires the specific intent to deprive another of his or her property permanently. Defendants argue that the Court's failure properly to instruct the jury on the underlying robbery offense invalidates their convictions for conspiracy and aiding and abetting.
In order to decide whether to grant a new trial on this basis, the Court must engage in a three-point inquiry. First, it must determine whether a Hobbs Act robbery requires specific intent. Second, assuming the Court answers the first question in the affirmative, the Court must determine the proper standard of review to apply to its failure to instruct on this element. This requires determining whether Defendants objected to the error. Third, once the Court ascertains the proper standard of review, it must apply that standard to determine whether the error was harmless.
As discussed below, the Court concludes that the specific intent to deprive another of his or her property permanently is an element of robbery under the Hobbs Act. The Court also determines that Defendants objected to the Court's failure to instruct on this element, which means that harmless-error analysis applies. Applying this standard, the Court concludes that the error was harmless.
a. Whether Robbery Under the Hobbs Act Requires The Specific Intent To Deprive Another Of His Or Her Property Permanently
Defendants claim that although the Hobbs Act's definition of robbery does not mention specific intent, the statute nevertheless requires it.
Defendants note that Congress took the Hobbs Act's definition almost verbatim from the New York robbery statute.
Defendants argue that because New York courts had construed the New York statute to require specific intent to deprive another of his property permanently, e.g., People v. Koerber, 244 N.Y. 147, 155 N.E. 79, 82 (N.Y. 1926), the Hobbs Act also requires specific intent.
As discussed below, principles of statutory construction, the legislative history of the Hobbs Act, and case law compel the conclusion that the Hobbs Act's definition of robbery incorporates New York's requirement of specific intent.
i. Principles Of Statutory Construction Create A Presumption That The Hobbs Act Incorporates New York's Requirement Of Specific Intent
The Third Circuit confronted this precise issue in United States v. Nedley, 255 F.2d 350 (3d Cir. 1958). The Third Circuit noted:
"Where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them."
Id. at 357 (quoting Morissette v. United States, 342 U.S. 246, 263, 96 L. Ed. 288, 72 S. Ct. 240 (1952)). The Third Circuit applied this reasoning to conclude that because Congress had used the New York statutory definition of robbery and had not indicated that specific intent was not an element, a Hobbs Act robbery requires specific intent.
This approach accords with the approach the Ninth Circuit took in a closely analogous case. In United States v. Aguon, 851 F.2d 1158, 1162-67 (9th Cir. 1988) (en banc), the Ninth Circuit decided whether a conviction for extortion under the Hobbs Act requires proof of "inducement." The Ninth Circuit explained that Congress had taken the Hobbs Act's definition of extortion from the New York Code, and that in construing the state statute, New York courts had required proof of inducement. The Ninth Circuit echoed Nedley by stating:
It is a well-established principle of statutory construction that when one jurisdiction adopts the statute of another jurisdiction as its own, there is a presumption that the construction placed upon the borrowed statute by the courts of the original jurisdiction is adopted along with the statute and treated as incorporated therein.