United States v. Aguilar-Banuelos ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 16, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 18-1133
(D.C. No. 1:16-CR-00306-RBJ-4)
HERNANDO AGUILAR- (D. Colo.)
BANUELOS,
Defendant-Appellant.
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ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
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Mr. Hernando Aguilar-Banuelos was convicted of aiding and abetting
a kidnapping. See 18 U.S.C. §§ 2, 1201(a)(1). 1 He appeals, challenging the
sufficiency of the evidence. We affirm in light of the government’s
*
The parties do not request oral argument, and it would not materially
aid our consideration of the appeal. We thus have decided the appeal based
on the briefs. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
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He was acquitted of conspiring to kidnap and receiving ransom
money.
evidence that Mr. Aguilar-Banuelos intentionally assisted in the
kidnapping.
1. Three men carry out the kidnapping.
Three men planned a kidnapping and asked Mr. Aguilar-Banuelos to
keep the victim at his apartment. Mr. Aguilar-Banuelos declined, but he let
the kidnappers use his apartment to keep the victim. During the actual
kidnapping, Mr. Aguilar-Banuelos stayed at a motel. The kidnappers paid
for the motel room and promised to give Mr. Aguilar-Banuelos $300, to
pay one month’s rent for his apartment, and to give him a handgun.
The kidnapping took place as planned, and the kidnappers obtained
cell phones to use in communicating about the ransom. The victim was
taken to Mr. Aguilar-Banuelos’s apartment, and Mr. Aguilar-Banuelos
helped the kidnappers activate their cell phones.
The kidnappers then took Mr. Aguilar-Banuelos to the motel, where
he stayed for three nights while the kidnappers sought to collect the
ransom. After three nights, the kidnappers collected the ransom, returned
the victim to his family, and drove Mr. Aguilar-Banuelos to his apartment.
2. We conduct de novo review over the sufficiency of the evidence.
The threshold issue involves our standard of review. The government
contends that we should apply the plain-error standard because Mr.
Aguilar-Banuelos presented a different argument in district court.
2
We assume for the sake of argument that Mr. Aguilar-Banuelos
preserved his present theory. Given this assumption, we engage in de novo
review. United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.
2004) . In conducting de novo review, we view the evidence in the light
most favorable to the government and ask whether a reasonable jury could
find Mr. Aguilar-Banuelos guilty beyond a reasonable doubt. United States
v. King, 632 F.3d 646, 650 (10th Cir. 2011) . This inquiry does not permit
us to gauge the witnesses’ credibility. Id. We can reverse only if the jury
could not rationally find each element of the crime. Id.
3. The evidence was sufficient to convict of aiding and abetting.
The conviction involved aiding and abetting a kidnapping. A
kidnapping takes place when the defendant holds someone against his or
her will for the defendant’s benefit. United States v. Gabaldon, 389 F.3d
1090, 1094 (10th Cir. 2004). The defendant could incur guilt for aiding and
abetting the kidnapping if he aided the kidnappers in relation to one or
more of the crime’s phases or elements. Rosemond v. United States, 572
U.S. 65, 71 (2014).
Mr. Aguilar-Banuelos points to evidence that he declined some of the
kidnappers’ requests. For example, he states that
 he declined an offer to participate in the kidnapping in
exchange for $25,000 to $30,000,
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 he left the apartment “to separate himself from the kidnapping”
(Appellant’s Opening Br. at 12), and
 he was merely subletting the apartment. 2
But the jury could reasonably have found participation based on Mr.
Aguilar-Banuelos’s actions and his statements to the police afterward.
Though Mr. Aguilar-Banuelos was absent for the actual abduction
and concealment of the victim, the government presented evidence that Mr.
Aguilar-Banuelos had attended a planning meeting at his apartment, let the
kidnappers use his apartment to keep the victim, helped the kidnappers
activate the cell phones that they later used to demand the ransom, told the
kidnappers where they could get the security uniforms later worn during
the abduction, and asked one of the kidnappers when the “fiesta” (code
word for the kidnapping) would happen so that he’d know when to leave
the apartment. For his efforts, Mr. Aguilar-Banuelos was paid and given a
handgun.
The government also presented evidence that after the kidnapping,
Mr. Aguilar-Banuelos told law enforcement officials that he had informed
the kidnappers where they could get security uniforms, had obtained
ammunition for the handgun that he had been promised, had been promised
2
In district court, Mr. Aguilar-Banuelos denied that he’d wanted the
kidnappers to succeed. But if he chose to help the kidnappers with
knowledge of their scheme, the intent element would be satisfied even if he
privately hoped that the kidnapping would fail. Rosemond v. United States,
572 U.S. 65, 79–80 (2014).
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money for his rent, had been given additional money to pay another
participant involved in the kidnapping, had been given cash for the motel
room, and had accompanied the kidnappers to the motel.
Mr. Aguilar-Banuelos’s arguments do little to undermine the
government’s evidence of his participation in the kidnapping. He declined
a bigger offer for greater involvement, but he unquestionably helped the
kidnappers. For example, Mr. Aguilar-Banuelos let the kidnappers use his
apartment to keep the victim while they arranged for the ransom.
Mr. Aguilar-Banuelos downplays this help, pointing out that he was
merely subletting the apartment. As a sublessor, however, he let the
kidnappers use the apartment. The jury could reasonably find that Mr.
Aguilar-Banuelos had known that he was helping the kidnappers regardless
of whether he was leasing or subleasing the apartment.
The combination of evidence permitted a reasonable finding that Mr.
Aguilar-Banuelos had aided and abetted the kidnapping. We thus conclude
that the evidence was sufficient to support the conviction.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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