## Facts

- A grocery store manager and a security guard transported about $63,000 in receipts to a bank.
- José A. García-Ortiz and an accomplice, Reinaldo Rolón Rivera, ambushed them and committed an armed robbery affecting commerce.
- Gunfire was exchanged between the assailants and the security guard.
- Rolón was shot and killed; the guard and the surviving robber were wounded.
- Eyewitness identification and forensic evidence, including DNA, linked García to the robbery as the surviving assailant.
- A federal jury convicted García of Hobbs Act robbery (and aiding and abetting), using/carrying a firearm during a crime of violence, and first-degree murder under a felony-murder theory tied to the robbery.

## Issues

1. Whether Hobbs Act “interference with commerce by robbery” qualifies as “robbery” within the felony-murder provision of 18 U.S.C. § 1111(a), supporting a § 924(j) first-degree murder conviction.
2. Whether the felony-murder jury instructions improperly omitted a mens rea requirement as to the killing.
3. Whether challenged evidentiary and trial-management rulings required reversal or were harmless.
4. Whether the sentence imposed on the Hobbs Act robbery count exceeded the statutory maximum, requiring remand.

## Decision

- The First Circuit affirmed García’s convictions for Hobbs Act robbery, the § 924(c)(1) firearm offense, and first-degree felony murder under § 924(j).
- The court held that Hobbs Act robbery falls within the meaning of “robbery” enumerated in § 1111(a).
- The court upheld the felony-murder instructions as consistent with § 1111(a)’s felony-murder framework, which does not require a separate intent-to-kill element.
- The court found no reversible evidentiary or procedural error; any non-constitutional evidentiary error was harmless because it was highly probable it did not affect the verdict.
- The court vacated the sentence on the Hobbs Act robbery count and remanded for resentencing because the term imposed exceeded the statutory maximum.

## Legal Principles

- For 18 U.S.C. § 1111(a) felony murder, “robbery” is read generically and can include Hobbs Act robbery under 18 U.S.C. § 1951 when it fits the ordinary definition of robbery.
- Under federal felony-murder as incorporated through § 924(j), the government must prove commission of the qualifying predicate felony and that a death resulted from the felony; a separate intent to kill is not required.
- A non-constitutional evidentiary error does not warrant a new trial if it is highly probable the error did not influence the verdict.
- A sentence that exceeds the statutory maximum must be vacated and remanded for correction, even when convictions are otherwise affirmed.

## Conclusion

The First Circuit sustained García’s felony-murder conviction by treating Hobbs Act robbery as “robbery” under § 1111(a), rejected challenges to the felony-murder instructions and trial rulings as non-reversible, and remanded only to correct a robbery-count sentence that exceeded the statutory maximum.


United States v. García-Ortiz, 528 F.3d 74 (1st Cir. 2008)