Post-Verdict Judgment of Acquittal Reversed

U.S. v. Vallejos, 2005 WL 1995586 (8/19/05) - A reversal of a post-verdict grant of a motion for acquittal. A divided 10th held there was sufficient evidence to prove the defendant aided and abetted a carjacking and use of firearm in furtherance of the carjacking in the following circumstances. The defendant's companion tells some women "Watch this." He and the defendant walk up to a truck. The companion sticks a gun in the driver's ribs and tells him to get out. At that time the defendant is a foot behind the companion and slightly to the right. The defendant jumped to the passenger side and shoved the exiting passenger out of the way and at the direction of the companion jumps on the bed as the companion takes off with the truck. The defendant testified he was blind in one eye and couldn't see very well in the other and didn't see that his companion had a gun. The 10th questioned the d.ct.'s application of the principle that the defendant had to know "to a practical certainty" that the companion had a gun. The 10th indicated it thought it was enough that the defendant "shared some knowledge" of the principle's intent. In any event, the 10th believed there was sufficient evidence the defendant saw the gun based on the companion's command to "watch this," the defendant's "clear line of vision," and his subsequent participation in the carjacking. Dissenting Judge McKay pointed out that none of the many other witnesses at the scene saw the gun and the defendant's receipt of disability payments established his vision problems.