United States District Court, E.D. Virginia
For Jose Armando Bran, also known as Pantro, Defendant: John Anthony Rockecharlie, LEAD ATTORNEY, Bowen Champlin Foreman & Rockecharlie, Richmond, VA; Carolyn V. Grady, Mary Elizabeth Maguire, Office of the Federal Public Defender (Richmond), Richmond, VA.
For Michael Arevalo, also known as Reptile, Defendant: Theodore David Bruns, LEAD ATTORNEY, Blackburn Conte Schilling & Click PC, Richmond, VA; John Staige Davis V,, Williams Mullen (Richmond), Richmond, VA.
For Karen San Jose, Defendant: Charles Arthur Gavin, Cawthorne Pickard Rowe Deskevich & Gavin PC, Richmond, VA; Reginald Moore Barley, Richmond, VA.
For USA, Plaintiff: Roderick C. Young, LEAD ATTORNEY, Office of the U.S. Attorney, Richmond, VA; Andrew L. Creighton, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.
Robert E. Payne, Senior United States District Judge.
This matter is before the Court on defendant Jose Armando Bran's (" Bran" ) MOTION FOR JUDGMENT OF ACQUITTAL (Docket No. 290). For the reasons set forth herein, the motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2012, Bran was charged in a Second Superseding Indictment with
Conspiracy to Commit Murder in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(5), Murder in Aid of Racketeering, in violation of 18 U.S.C. § § 1959(a)(1) and 2, Use of a Firearm During a Crime of Violence Causing Death to Another, in violation of 18 U.S.C. § § 924(c)(1)(A), (j) and 2, Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5), and Maiming in Aid of Racketeering Activity, in violation of 18 U.S.C. § § 1959(a)(2) and 2.
Count Three alleged a violation of 18 U.S.C. § § 924(c)(1)(A) and (j), Use of a Firearm During a Crime of Violence Causing Death to Another. Specifically, Count Three alleged:
On or about July 24, 2011, in Richmond, Virginia, in the Eastern District of Virginia, and elsewhere, the Defendant, Jose Armando Bran, and others did unlawfully, knowingly, and intentionally use, carry and discharge a firearm during and in relation to a crime of violence for which they may be prosecuted in a Court of the United States, specifically, murder in aid of racketeering, in violation of Title 18 United States Code Section 1959(a)(1), as set forth and charged in count one, which is re-alleged and incorporated by reference herein, and in the course of this violation caused the death of Osbin Noel Hernandez-Gonzalez through the use of the firearm which killing was murder, as defined in 18 U.S.C. Section 1111, in that the Defendant, Jose Armando Bran, with malice aforethought, did unlawfully kill and murder Osbin Noel Hernandez-Gonzalez by shooting him with a firearm and did aid, abet, counsel, command, induce, or cause another to commit said offense, in violation of Title 18, Sections 924(c)(1)(A) and (j) and 2.
(Second Superseding Indictment (Docket No. 279) at 59). At the conclusion of the trial, the Court instructed the jury on the elements of Count Three and provided the jury with the verdict form. The verdict form requested the jury to state whether the defendant was guilty or not of Count Three and, if he was found guilty of Count Three to answer whether the jury unanimously found that the defendant aided and abetted another to: " Use a firearm; " " Carry a firearm; " or " Cause a firearm to be discharged." The Court made clear in its verbal instructions to the jury that, if they found the defendant guilty, " you have to then answer the next question: Did he aid, abet, [etc.] another to use, carry, or cause a firearm to be discharged. And you have to check which ones you think are correct, if any. And you have to be unanimous."
After deliberations, the jury returned a verdict of " guilty" as to Count Three and marked an " x" by " cause to be discharged." The jury left the remaining lines blank. The Court inquired of counsel whether the jury should be sent back to provide an answer as to " use" and " carry" and the parties indicated that they were happy to rest on the verdict form as returned.
Subsequently, Bran filed this motion for a judgment of acquittal as to § 924(j), arguing that, because the jury did not make a finding of " use" he could not be convicted of the § (j) enhancement which provides that " [a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall" be subject to a particular maximum penalty. The Government opposed ...