322 F.3d 110

Defendant-appellant Harold Evans-Garc?a appeals from his conviction of aiding and abetting a carjacking, 18 U.S.C. ?? 2 and 2119(3), and a related firearms offense, id. ?? 2 and 924(c)(1). He contends that there was insufficient evidence from which a jury could conclude that he intended, or knew that his co-defendants intended, to inflict death or serious bodily harm as required by the carjacking statute. We disagree, and accordingly affirm Evans-Garc?a’s conviction and sentence.

We set forth the trial evidence in the light most favorable to the prosecution. United States v. Baltas, 236 F.3d 27, 35 (1st Cir.2001). On March 23, 1996, Evans-Garc?a and five co-defendants ? Victor Lebr?n-Cepeda, Francisco Trinidad Kuilan, Luis R. Pagan-Melendez, Elvis Qui?ones Cruz, and Xavier Hern?ndez-San Miguel ? went to the El Valle Puerto Real Housing Project. Earlier in the evening, Trinidad had informed the group that he was carrying a nickel-plated .38 caliber revolver.

At the housing project, Evans-Garc?a and co-defendants Lebr?n, Qui?ones, and Trinidad went off to talk amongst themselves. While they were talking, Trinidad handed the revolver to Lebr?n. Evans-Garc?a then informed Hern?ndez that they were going to commit a carjacking. Hern?ndez agreed to take them in his vehicle.1

Somewhat later, Evans-Garc?a, Lebr?n, Hern?ndez and Qui?ones picked up co-defendant Jos? R. Caraballo-Gonz?lez at the VeVe Calzado Housing Project. Hern?ndez drove the four others to the Parque Pasivo Las Croabas, Fajardo, Puerto Rico. There, he and Qui?ones dropped off Evans-Garc?a, Lebr?n, and Caraballo and left the park. Parked nearby was a red 1994 Hyundai belonging to Ivan Font?nez-Bruno. In the car were Font?nez and Daisy Torres-Mu?iz, both Puerto Rico Police Department cadets. The Hyundai was built in Korea and shipped in interstate or foreign commerce.

While parked, Font?nez and Torres noticed that Evans-Garc?a, Lebr?n, and Caraballo were behaving suspiciously, and they decided to leave. Before they could do so, the three men surrounded the car, with Evans-Garc?a on the passenger side. Caraballo pointed a nickel-plated .38 revolver at Font?nez’s head.2 When Font?nez attempted to pull his police-issued firearm, Caraballo told Font?nez “not to pull anything” because he had his firearm already cocked. Evans-Garc?a then ordered Font?nez and Torres out of the car and into the rear passenger seat; Font?nez dropped his firearm during this process. Evans-Garc?a sat in the front passenger seat and picked up Font?nez’s firearm.

Caraballo took the driver’s seat and gave the cocked revolver to Lebr?n, who sat in the rear passenger seat. Lebr?n then held the firearm to Font?nez’s head. As they drove out of the park, Evans-Garc? accused Font?nez of being a police officer. When Font?nez and Torres begged for the defendants to release them and not to kill them, Caraballo and Lebr?n informed them that it was “not their style” and that Font?nez and Torres already knew where they were going, to which Evans-Garc?a added, “to the cemetery.” Evans-Garc?a instructed Lebr?n to take the victims’ money and jewelry.

As they were driving, the car collided with something, causing the front bumper to come loose and drag on the road. At that point, Evans-Garc?a again accused Font?nez of being a police officer. Immediately thereafter, Lebr?n shot Font?nez once behind the ear. After a very short interval ? no more than a minute ? Evans-Garc?a turned around and shot Font?nez approximately seven or eight times in the chest and abdomen.

After the shooting, Caraballo stopped the car. Evans-Garc?a ordered that Font?nez’s body be pulled out of the car. He then pulled Torres out of the car on the passenger side and held her down by the hair. Although Evans-Garc?a and Caraballo wanted to put her back in the car and kill her later, Lebr?n persuaded them not to. As the defendants drove off, Evans-Garc?a told Torres to run for her life. The car dragged Font?nez’s body for a short distance, until Evans-Garc?a freed it from the car door, leaving the body and a highly distraught Torres at the side of the road.

On February 4, 1998, a federal grand jury returned a six-count indictment against Evans-Garc?a and the four co-defendants. Evans-Garc?a was charged with aiding and abetting in an armed carjacking resulting in death, in violation of 18 U.S.C. ?? 2 and 2119(3), and aiding and abetting in the use and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. ?? 2 and 924(c)(1). He pled not guilty.

Evans-Garc?a’s jury trial was held in January, 2001.3 At trial, he moved for acquittal, contending that the government had failed to prove its case with regard to the carjacking count. The district court denied the motion, and Evans-Garc?a was convicted on both counts. On October 5, 2001, the court sentenced Evans-Garc?a to two consecutive terms of life imprisonment pursuant to 18 U.S.C. ? 924(c)(3).

On appeal, Evans-Garc?a argues that there was insufficient evidence of his intent to aid and abet the carjacking to support his conviction and life sentences. We review all the evidence, direct and circumstantial, in the light most favorable to the prosecution, drawing all reasonable inferences consistent with the verdict and avoiding credibility judgments, to determine whether a rational jury could have found him guilty beyond a reasonable doubt. Baltas, 236 F.3d at 35.

As amended, the carjacking statute provides:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall ?

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury … results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

18 U.S.C. ? 2119 (1994 ed. and Supp. III).

In Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999), the Supreme Court clarified that the intent of the defendant is to be assessed when he “took” the vehicle:

The statute’s mens rea component thus modifies the act of “tak[ing]” the motor vehicle. It directs the factfinder’s attention to the defendant’s state of mind at the precise moment he demanded or took control over the car “by force and violence or by intimidation.”

Id. at 8, 119 S.Ct. 966, 143 L.Ed.2d 1. The Court further held that the intent to cause death or serious bodily harm could be satisfied not only by “actual” intent but also by “conditional” intent, i.e., a willingness to cause death or serious bodily harm if necessary to hijack the car. Id. at 11-12, 119 S.Ct. 966.

There is an additional layer in the analysis of Evans-Garc?a’s intent in this case, as the indictment and judgment state that he was an aider and abetter in the offenses.4 To be liable as an aider and abetter, a defendant must have “consciously shared the principal’s knowledge of the underlying criminal act, and intended to help the principal.” United States v. Otero-Mendez, 273 F.3d 46, 51 (1st Cir.2001) (quoting United States v. Taylor, 54 F.3d 967, 975 (1st Cir.1995)) (internal quotation marks omitted). The aider and abetter must have shared the principal’s criminal intent; “[a] generalized suspicion is not enough.” Id. at 52 (citing United States v. Loder, 23 F.3d 586, 591 (1st Cir.1994)).5

During the course of this appeal, Evans-Garc?a’s legal arguments have mutated. In his opening brief, he conceded that he was guilty of the crime of carjacking. He contended, however, that he lacked the specific intent to cause death, which he asserted was necessary to incur the enhanced penalty under 18 U.S.C. ? 2119(3) (“if death results”). In his reply brief, Evans-Garc?a changed course, saying that he had initially misapprehended the statute, and argued that he lacked “the intent to cause death or serious bodily harm” at the time of the taking of the car and hence could not be found guilty of any carjacking under the statute. At oral argument, he continued to maintain that he was not liable for carjacking, and renewed the argument from his opening brief that he lacked the requisite intent for the enhanced penalty.

Arguments raised for the first time in reply briefs are generally deemed waived. United States v. Brennan, 994 F.2d 918, 922 n. 7 (1st Cir.1993). In any event, there is ample evidence to support the jury’s conclusion that Evans-Garc?a possessed ? or knew that the principals possessed ? at least conditional intent to inflict death or bodily harm at the time he and his co-defendants took the car. First, the jury heard evidence that Evans-Garc?a was involved in the preparations for the carjacking. Co-defendant Pagan-Melendez testified that he observed Evans-Garc?a and two other co-defendants, Lebr?n and Trinidad, engage in a discussion during which Trinidad handed a revolver to Lebr?n. At the end of this discussion, Pagan-Melendez heard Evans-Garc?a say that “they were going to do a carjacking.”

Second, Evans-Garc?a was an active participant in the carjacking itself. With his co-defendants, he surrounded the victims’ car to prevent them from exiting. He was present when Caraballo placed the revolver to Font?nez’s head and told him it was cocked. He directed Torres to climb into the rear car seat and picked up Font?nez’s firearm. Significantly, there was evidence from which the jury could have found that Evans-Garc?a told the victims that they were on their way “to the cemetery.”6

In sum, the use of the firearm and the co-defendants’ statements provided sufficient evidence of their conditional intent to inflict injury or death if necessary to take control of Font?nez’s car. See Holloway, 526 U.S. at 11-12, 119 S.Ct. 966. The trial record also supported the conclusion that Evans-Garc?a knew to a practical certainty that his co-defendants possessed this intent and indeed shared it, permitting the jury to find him liable as an aider and abetter.

Next, Evans-Garc?a maintains that subsection (3) does not apply because he lacked specific intent to cause Font?nez’s death. Such intent, he contends, is a requirement additional to that set forth in the body of ? 2119, i.e., that the carjacker intended to cause death or serious bodily harm at the time he took the vehicle. The government contends that no such additional specific intent to kill is required under 18 U.S.C. ? 2119(3), and that subsection (3) concerns only the causal issue of whether death resulted from the carjacking. We need not delve into this question, as the evidence at trial supports the conclusion that Evans-Garc?a intended to cause death when he shot Font?nez.

Evans-Garc?a shot Font?nez seven or eight times in the chest and abdomen at close range, shortly after accusing Font?nez of being a police officer. Despite Evans-Garc?a’s contention that his victim was already dead when he shot him, evidence at trial showed that either Lebr?n’s shot to the head or Evans-Garc?a’s multiple shots less than a minute later could have caused Font?nez’s death. This evidence, in conjunction with that set forth supra, supports the conclusion that Evans-Garc?a intended to kill Font?nez.

Accordingly, we AFFIRM Evans-Garc?a’s carjacking conviction and sentence.