2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-2015

USA v. Baldwin Centeno

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-2024

_____________

UNITED STATES OF AMERICA

v.

BALDWIN CENTENO,

Appellant

____________

No. 14-2690

_____________

UNITED STATES OF AMERICA 

v. 

SANTOS CENTENO

a/k/a

HECTOR CRUZ,

 

Santos Centeno,

 Appellant
2

__________________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA

(D.C. Nos. 2-12-cr-00634-001, 2-12-cr-00634-002)

District Judge: Honorable Juan R. Sanchez

______________________

Argued: June 3, 2015

____________________

Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

(Filed: July 14, 2015)

Brett G. Sweitzer, Esq. [ARGUED]

Federal Community Defender Office 

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19016

Counsel for Appellant (No. 14-2024)

Elizabeth Plasser Kelly, Esq. [ARGUED]

256 Eagleview Boulevard

P.O. Box 155

Exton, PA 19341 

Counsel for Appellant (No. 14-2690)
3

Denise S. Wolf, Esq. [ARGUED]

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

_______________________

OPINION

______________________

SHWARTZ, Circuit Judge.

Baldwin and Santos Centeno appeal their convictions 

and sentences arising from violent assaults at the

Independence National Historical Park in Philadelphia.1 Each 

challenges the sufficiency of the evidence supporting his 

convictions. In addition, Baldwin argues that his conviction 

must be reversed due to a constructive amendment of the 

Indictment and, in any event, that his sentence must be 

vacated due to the District Court’s failure to personally 

address him before imposing its sentence. Finally, each 

contends that one conviction violates the Double Jeopardy 

Clause and must be vacated. We conclude that the evidence 

is sufficient to support the convictions but, with respect to 

Baldwin, the Government’s rebuttal summation advocated a 

 

1 For convenience, we will refer to each defendant by 

his first name.
4

basis for conviction that was not charged in the Indictment 

and resulted in a constructive amendment, requiring that we 

vacate his convictions and remand for a new trial. As to 

Santos, we agree with the parties that one of his assault 

convictions violated the Double Jeopardy Clause so we will 

vacate that single conviction and remand for resentencing.

I

The charges arise from incidents that occurred on June 

16 and 20, 2012. Around 1:00 a.m. on June 16, 2012, Ashish 

Lokhande was found lying in a pool of blood on the sidewalk 

in Independence National Historical Park. Lokhande could 

not recall being assaulted or ever seeing either Baldwin or 

Santos. He remembered only having been to work that day 

and waking up in the hospital days later. Lokhande testified 

that his “normal routine” for a Friday evening was to drive his 

car into Philadelphia to go salsa dancing and that he typically 

parked his car around Fifth and Market Streets, near

Independence National Historical Park. 

Christopher Robles was with Baldwin and Santos on 

the night of the assault. Robles testified that he, Baldwin, and 

Santos drove from Santos’s apartment in Camden, New 

Jersey into Philadelphia, using Baldwin’s four-door sedan 

with a black hood that did not match the color of the rest of 

the car. After they parked, Santos and Baldwin exited the car 

and Robles remained in the backseat.2 

 

2 Robles testified that he stayed in the car because he 

was too “drunk” to walk. App. 446. 
5

 Shortly thereafter, three men joined Baldwin and 

Santos. Robles testified that Baldwin and Santos leaned 

against the car while the three men paced back and forth 

along the sidewalk. The group talked, drank, and laughed. 

Eventually, a man approached Baldwin and Santos and asked 

if they could help him locate his car.

3 Robles testified that he 

then saw the man “being attacked,” App. 431, which included 

being hit and punched.

Robles testified that Baldwin and Santos were 

“around” the victim, App. 432, 435, and were “in the group of

five that attacked” him, App. 444. Robles further admitted 

that “any” or “all” “of [the] five men” could have attacked the 

victim, that he did not see who struck him, App. 443-44, and 

that he could not say whether Baldwin or Santos were 

“looking or hitting,” App. 508-09.

After the attack, Baldwin, Santos, and the three other 

men yelled “let’s go” and quickly “ran” to Baldwin’s car. 

App. 448, 451, 455. As they drove away, Robles saw the 

victim lying on the ground, bleeding. Video surveillance tape 

from a nearby building showed a gold or tan Ford Taurus 

with a black hood leaving the scene of the assault at 

approximately 12:50 a.m. on June 16, 2012. According to 

Robles, Baldwin drove the car back to Camden. Cell tower 

records showed that Lokhande’s cell phone was in Camden

hours later. 

 

3 About two hours before the assault, Lokhande’s car 

was towed from a parking spot near where Lokhande was 

found. 
6

Four days later, on June 20, 2012, Santos and Baldwin 

returned to Independence National Historical Park and 

encountered Joseph Crumbock and his wife, D.W. Around 

10:15 p.m., Crumbock and D.W. were walking in the same 

location where Lokhande had been assaulted. Crumbock and 

his wife saw “four guys standing around [a] car,” App. 515, 

“just staring [them] down,” App. 559. After they walked

approximately ten to fifteen feet past the men, Santos “came 

running at” Crumbock, App. 517, “calling [him] names,” and 

pushing and punching him. App. 518. Crumbock testified 

that the other three men came over and “surrounded” him and 

that “two of them jumped on [his] back” and “punched [him] 

in the face.” App. 519-20. Crumbock’s cell phone and wallet 

were stolen during the attack. 

While on the ground, Crumbock saw Santos “standing 

over” D.W., who “was screaming on the ground.” App. 520. 

Crumbock recalled that his wife’s face “was all bloody” and 

that she was “crying and screaming,” App. 521, as Santos 

attempted to “drag[] her across the sidewalk” using the strap 

on her pocketbook, App. 524-25. D.W. testified that she fell 

to the ground after Santos punched her in the mouth.

4

 

A U.S. Park Ranger heard D.W.’s screams, exited his

station, and saw “a man dragging a woman . . . in the middle 

of [the] Street.” App. 651. He yelled “stop, police,” and ran 

after the man, App. 652, who “got into the rear passenger” 

 

4 Crumbock identified Santos both in a photo array and 

during trial as the man who attacked him and D.W. Because 

of a suppression ruling, D.W. did not make an in-court 

identification, but the Government published to the jury the 

photo array indicating D.W. identified Santos as her attacker. 
7

side of a gold or tan four-door 2003 Ford Taurus with a black 

hood later determined to be registered to the mother of 

Baldwin’s child, App. 652, 656, 710-11, 716-18.5 Two days 

later, law enforcement stopped the car in Camden with 

Baldwin, Santos, and Robles inside. 

A grand jury returned a five-count Indictment against 

the Centenos. For the June 16, 2012 incident, the Indictment 

charged the Centenos with: (1) knowingly assaulting, and 

aiding and abetting assault, “resulting in serious bodily 

injury” to Lokhande in violation of 18 U.S.C. §§ 113(a)(6), 2

(Count One); (2) knowingly assaulting, and aiding and 

abetting assault, by “striking, beating or wounding” Lokhande 

in violation of 18 U.S.C. §§ 113(a)(4), 2 (Count Two); and 

(3) knowingly taking, and aiding and abetting the taking of, 

property belonging to Lokhande by force and violence and 

intimidation in violation of 18 U.S.C. §§ 2111, 2 (Count 

Three). App. 30-32. As to the June 20, 2012 incident, the 

 

5 Around this time, Chelsea Schmotzer was sitting in 

the driver’s seat of her parked car at an intersection near 

Independence National Historical Park. Schmotzer testified 

that she saw a gold car pull up behind her and four men exit 

the car. The men “split up” in different directions, App. 583-

84, and, approximately ten to twenty minutes later, Schmotzer 

heard a woman “screaming for help, clearly very distressed,” 

App. 584-85. Schmotzer then saw the men “running towards 

[her] car” and one of the men, whom she identified as 

Baldwin, ran “right by” her side mirror. App. 585-86. 

Schmotzer also testified that she made eye contact with 

Baldwin and that he resembled one of the men who exited the 

gold car minutes earlier. 
8

Indictment charged the Centenos with: (1) knowingly 

assaulting, and aiding and abetting assault, “by striking, 

beating [or] wounding” Crumbock and D.W. in violation of 

18 U.S.C. §§ 113(a)(4), 2 (Count Four); and (2) taking, and 

aiding and abetting the taking of, property belonging to 

Crumbock and D.W. “by force and violence[, or] by 

intimidation” in violation of 18 U.S.C. §§ 2111, 2 (Count 

Five). App. 33-34. 

The Centenos proceeded to trial. In his summation, 

Baldwin’s counsel argued that there was no evidence that 

Baldwin actually assaulted Lokhande, or that he was even 

“driving the car that night.” App. 908. His counsel also 

argued that “get[ting] in your car” and “leaving quickly” do

not constitute aiding and abetting. App. 913. In its rebuttal

summation, the Government told the jury:

Defense counsel mentioned aiding and abetting, 

the Judge is going to instruct you on the law on 

this point. You can still be guilty if you don’t 

throw a punch. Not the first punch, second 

punch, it doesn’t matter if you never touch the 

guy, you can still be guilty as long as you’re 

supporting and participating in some way. You 

cannot be part of a group that commits a crime 

and then say I didn’t touch him; not me. That’s 

not how the law works. 

So . . . any one of these points I’m about to go 

over, you can find [Baldwin] guilty. . . . [Y]ou 

can find him guilty because he was part of [the] 

group that knowingly, physically went around 
9

Mr. Lokhande . . . if he’s around that group 

preventing a victim from escaping, that’s guilty. 

If he was part of a group – if his physical 

presence was supporting the other assailants, 

that is guilty. 

If he was a getaway driver, driving his car away 

from a crime scene after the victim fell to the 

ground and he knowingly is driving the car, that 

alone, he’s guilty, any one of these.

App. 920. 

Defense counsel immediately objected, contending 

that the Government’s comments amounted to an “accessory 

after the fact” theory that had not been charged in the 

Indictment. App. 923. The District Court overruled the 

objection, but informed defense counsel: “[I]f you want a 

specific curative instruction I will be happy to do that if you 

propose language.” App. 924. Defense counsel suggested: “I 

just figure the jury should know that unless there’s evidence 

that the car was used in the assault, like he drove it into the 

victim or something like that, there’s – getting in the car and 

leaving the scene is . . . [in]sufficient to show aiding and 

abetting, robbery, and assault.” App. 929. The District Court 

rejected defense counsel’s suggested instruction, stating “I 

think the model jury instruction that I’m giving as 

supplemented with your request, adequately addresses both 

side’s concern.” App. 929. It instructed the jurors as follows

with respect to aiding and abetting:
10

In order to find a defendant guilty of an offense 

because he aided and abetted the principal in 

committing that offense, you must find that the 

[G]overnment proved beyond a reasonable 

doubt each of the following four elements: One, 

that [t]he principal committed the offense 

charged by committing each of the elements of 

the offenses charged, as I have explained those 

elements to you in my instructions. The 

principal need not have been charged with, or 

found guilty of, the offense, however, as long as 

you find that the [G]overnment proved beyond 

a reasonable doubt that he committed the 

offense. Second, that the defendant knew that 

the offense charged was going to be committed 

or was being committed by the principal. Third, 

that the defendant knowingly did some act for 

the purpose of aiding, assisting, soliciting, 

facilitating, or encouraging the principal in 

committing the specific offense charged and 

with the intent that the principal commit that 

specific offense. And fourth, that the 

defendants did in some way aid, assist, 

facilitate, or encourage the principal to commit 

the offense. The defendant’s acts need not 

themselves be against the law.

. . . [E]vidence that the defendant merely 

associated with persons involved in a criminal 

venture, or was merely present, or was merely a 

knowing spectator during the commission of the 

offense is not enough for you to find him guilty 

as an aider and abettor. An individual has no 
11

legal obligation or duty to report a crime he 

witnesses.

. . . The [G]overnment must prove, beyond a 

reasonable doubt, that the defendant in some 

way participated in the offense committed by 

the principal as something that the defendant 

wished to bring about and to make succeed. 

App. 962-64.

Before excusing the jurors for deliberation, the District 

Court provided the following limiting instruction concerning 

the similarities between the June 16 and June 20, 2012 

incidents: 

Now, you have heard testimony that the 

defendants participated in assaults and robberies 

on June 16th and June 20th. In determining 

whether a defendant committed the offense 

charged on one of the nights in question, you 

may consider evidence regarding the events on

the other night in question for the limited 

purpose of deciding whether a defendant: (1) 

acted with a method of operation as evidenced 

by a unique pattern or did not commit the acts 

for which he is on trial by accident or mistake 

or is the person who committed the crime 

charged in the indictment. Of course, it is for

you to determine whether you believe this 

evidence, and if you believe it, whether you 

accept it for those purposes I have just 

mentioned. You may give it such weight as you 
12

feel it deserves to receive, but only for the 

limited purpose that I described to you. 

For example, you may not conclude that simply 

because a defendant committed certain acts on 

June 16th, he must also have committed certain 

acts on June 20th and vice versa. You must still 

determine whether there is proof beyond a 

reasonable doubt that the defendants committed 

each charged offense on June 16th and each 

charged offense on June 20th. Similarly, you 

may not consider evidence of acts committed on 

one night as evidence of a defendant’s bad 

character or propensity to commit the crimes 

charged on the other night. . . .

App. 951-52.6

Baldwin was convicted of the two assault charges 

related to the June 16, 2012 incident but was acquitted of the 

robbery charge related to the June 16, 2012 incident and all 

charges related to the June 20, 2012 incident. Santos was 

convicted of all assault charges and the June 20, 2012 robbery 

but was acquitted of the June 16, 2012 robbery. 

During Baldwin’s sentencing hearing, the District 

Court asked Baldwin’s counsel: “Does your client wish to 

speak to the court?” App. 1102-03. Baldwin’s counsel 

answered “No,” and the District Court responded, “He has a 

right to speak to the court. He doesn’t want to speak to the 

court?” App. 1103. Baldwin’s counsel answered, “Not at 

 

6 The parties consented to this limiting instruction. 
13

this time, Your Honor.” Id. The District Court did not 

directly address Baldwin. Baldwin received a sentence of 

fifty-seven months’ imprisonment. Santos received a 

sentence of 188 months’ imprisonment. Both appeal their 

convictions and sentences.

II7

A

The Centenos challenge the sufficiency of the evidence 

supporting their convictions. In reviewing this claim, we ask 

“whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a 

reasonable doubt.” United States v. Caraballo-Rodriguez, 

726 F.3d 418, 424-25 (3d Cir. 2013) (en banc) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This is a 

“particularly deferential standard of review.” United States v. 

Dent, 149 F.3d 180, 187 (3d Cir. 1998). “We do not weigh 

evidence or determine the credibility of witnesses. . . .” 

United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003) 

(internal quotation marks omitted). Rather, we view the 

evidence as a whole and “ask whether it is strong enough for 

a rational trier of fact to find guilt beyond a reasonable 

doubt.” Caraballo-Rodriguez, 726 F.3d at 430 (internal 

quotation marks omitted). Thus, “a reviewing court faced 

with a record of historical facts that supports conflicting 

inferences must presume—even if it does not affirmatively 

 

7 The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742.
14

appear in the record—that the trier of fact resolved any such 

conflicts in favor of the prosecution, and must defer to that 

resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010) 

(per curiam) (internal quotation marks omitted). 

We will first review the elements of the offenses and 

then examine the record to see if there is evidence from which 

a rational juror could find that the elements were proven. 

Each defendant was convicted of assault in violation of 18 

U.S.C. §§ 113(a)(6) and (a)(4), and 2. To prove assault 

resulting in serious bodily injury in violation of § 113(a)(6), 

the Government must prove: (1) the defendant assaulted 

another person; (2) the assault caused the other person to 

suffer serious bodily injury; and (3) the assault took place 

within the special maritime and territorial jurisdiction of the 

United States.8 18 U.S.C. § 113(a)(6). To prove assault “by 

striking, beating, or wounding” in violation of § 113(a)(4), 

the Government must prove that, while within the special 

 

8 Two appellate courts have indicated that a violation 

of § 113(a)(6) also requires proof that the assault occurred by 

“intentionally striking” the victim. United States v. Davis, 

726 F.3d 357, 360 (2d Cir. 2013); United States v. Felix, 996 

F.2d 203, 207 (8th Cir. 1993) (holding that the difference 

between what is now designated as § 113(a)(4) and (a)(6) is 

the degree of injury that results from the assault, suggesting 

striking is an element of both offenses). But see, e.g., United 

States v. Bruce, 458 F.3d 1157, 1162 n.1 (10th Cir. 2006) 

(stating that assault resulting in serious bodily injury does not 

require proof of physical touching). We need not resolve 

whether striking is an element because the jury was instructed 

that it was and the evidence shows that Lokhande, Crumbock,

and D.W. were struck.
15

maritime and territorial jurisdiction of the United States, the 

defendant assaulted the victim while making “some form of 

physical contact.” United States v. Herron, 539 F.3d 881, 886 

(8th Cir. 2008); see also United States v. Bruce, 458 F.3d 

1157, 1162 n.1 (10th Cir. 2006) (stating that assault by 

striking requires physical touching). 

With respect to “aiding and abetting” under 18 U.S.C. 

§ 2, the Government must prove: “(1) that another committed 

a substantive offense; and (2) the one charged with aiding and 

abetting knew of the commission of the substantive offense 

and acted to facilitate it.” United States v. Mercado, 610 F.3d 

841, 846 (3d Cir. 2010). Additionally, we require proof that 

the defendant had the specific intent to facilitate the crime. 

Id. “One can aid or abet another through use of words or 

actions to promote the success of the illegal venture.” Id. 

Indeed, “only some affirmative participation which at least 

encourages the principal offender to commit the offense” is 

required. United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 

1992) (internal quotation marks omitted). There must, 

however, be “more than associat[ion] with individuals 

involved in the criminal venture.” United States v. Soto, 539 

F.3d 191, 194 (3d Cir. 2008) (internal quotation marks 

omitted). “Neither mere presence at the scene of the crime 

nor mere knowledge of the crime is sufficient to support a 

conviction.” Mercado, 610 F.3d at 846. A defendant is not 

guilty of aiding and abetting an offense unless the defendant 

“did something to forward the crime and . . . was a participant 

rather than merely a knowing spectator.” United States v. 

Dixon, 658 F.2d 181, 189 (3d Cir. 1981) (parentheses and 

internal quotation marks omitted); see also Rosemond v. 

United States, 134 S. Ct. 1240, 1248 (2014) (“To aid and abet 

a crime, a defendant must not just in some sort associate 
16

himself with the venture, but also participate in it as in 

something that he wishes to bring about and seek by his 

action to make it succeed.” (internal quotation marks 

omitted)). 

Turning to the events of June 16, there is no dispute 

that Lokhande was assaulted by striking on property within 

the special territorial jurisdiction of the United States and that 

he sustained serious injuries. The only issue is whether there 

was sufficient evidence from which a rational juror could find 

that the Centenos aided and abetted the assault. We conclude

that, when the Centenos’ actions before, during and after the 

assault are viewed in a light most favorable to the 

Government, the evidence is sufficient to sustain their 

convictions. 

Robles testified that the Centenos drove to 

Philadelphia, exited the car, and were met by three other men 

with whom they were friendly. While they socialized, 

Lokhande approached the Centenos and asked them for help 

locating his car, after which Lokhande was immediately 

attacked. This suggests that the Centenos were closer to 

Lokhande than the other men when the attack began. Robles 

did not say who punched Lokhande nor did he say that the 

Centenos helped the victim. Rather, he testified that Baldwin 

and Santos were “around” Lokhande during the attack, App. 

432, and they were “part of” the five-man group that attacked 

him. App. 448. From this, a rational juror could infer at a 

minimum that their physical presence was intimidating, 

prohibited the victim’s escape, or encouraged their friends to 

proceed in the assault and thus they were involved in the 

attack. Cf. United States v. Barber, 429 F.2d 1394, 1396–97

(3d Cir. 1970) (reversing defendant’s aiding-and-abetting-
17

assault conviction where evidence suggested only that 

defendant was part of the 15-man group that confronted the 

FBI agents “before the outbreak of violence” and did not 

indicate whether defendant was acquainted with the other 

group members beforehand). 

The Centenos’ conduct following the attack further 

supports a reasonable inference that they were participants. 

The Centenos fled the scene in the same car with the other 

three men immediately after the attack, and there is no 

evidence that they objected to the other three men leaving 

with them in Baldwin’s car. Such flight with the other actors 

could reasonably be viewed as evidence of both approval of 

the conduct and consciousness of guilt. United States v. 

Green, 25 F.3d 206, 210 (3d Cir. 1994); Barber, 429 F.2d at 

1397 n.4 (observing that “[f]light from the scene of the crime 

with the actual perpetrators has been said to justify” an 

inference of “participation in the wrongdoing”). Cell phone 

records also showed that Lokhande’s cell phone was near the 

Centenos’ home in Camden hours after the attack, a fact a 

rational juror might find evinces the Centenos’ participation 

in the assault. 

Lastly, four days later, the Centenos traveled together 

in the same car to approximately the same location, where

Santos assaulted and robbed Crumbock and D.W., and 

Baldwin was observed fleeing from the area of the assault. 

From this evidence, a rational juror could find that the 

Centenos “acted with a method of operation as evidenced by 

a unique pattern” App. 952, and that it was less likely the 

Centenos were “merely . . . knowing spectator[s]” on June 
18

16.9 Dixon, 658 F.2d at 189 (internal quotation marks 

omitted).

Taken together under our “highly deferential” standard 

of review, Caraballo-Rodriguez, 726 F.3d at 430, these facts 

provide a basis for a rational juror to conclude that the 

Centenos were involved in the attack. See generally

Mercado, 610 F.3d at 846 (reiterating that “[a]n aiding and 

abetting conviction can be supported solely with 

circumstantial evidence as long as there is a logical and 

convincing connection between the facts established and the 

conclusion inferred” (internal quotation marks omitted)). 

Therefore, there is sufficient evidence to support their 

convictions on Counts One and Two. 

We next examine the sufficiency of the evidence

supporting Santos’s convictions arising from the June 20, 

2012 assault by striking (Count Four) and robbery (Count 

Five). Again, there is no dispute that an assault and robbery 

occurred within the special territorial jurisdiction of the 

United States. The only issue is whether there is sufficient 

evidence to support the jury’s verdict that Santos played a 

 

9 Baldwin “affirmatively challenges the Rule 404(b)” 

ruling only should the Court “view the June 20 evidence as 

integral to any conclusion that the evidence was sufficient as 

to” June 16, see Baldwin Br. 33 & 34 n.13, but neither he nor 

Santos raises a Fed. R. Evid. 404(b) violation as among the 

issues in this appeal, see id. at 3; Santos Br. 3. Because these 

issues were “not squarely argued” and were at most “raised in 

passing (such as, in a footnote),” they are waived. See John 

Wyeth & Brother Ltd. v. Cigna Int’l Corp., 119 F. 3d 1070, 

1076 n.6 (3d Cir. 1997). 
19

role in these events. We conclude the evidence is sufficient. 

Crumbock and D.W. described the June 20 events in detail 

and identified Santos as their attacker either on the witness 

stand, in a photo array, or both. D.W. specifically testified 

that Santos punched her, and Crumbock testified that Santos 

punched him and “dragg[ed] [D.W.] across the sidewalk” 

using the strap of her pocketbook. App. 524. A U.S. Park 

Ranger saw the man who dragged D.W. into the middle of the 

street, enter the rear passenger side of a car later shown to be 

registered to the mother of Baldwin’s child. Crumbock 

described the getaway car as an older model four-door car 

with a roof of a different color than the rest of the car, a 

description largely consistent with the gold four-door 2003 

Ford Taurus with a black hood in which the Centenos were 

found two days later. Thus, the evidence against Santos, 

viewed as a whole in the light most favorable to the 

Government, was “strong enough for a rational trier of fact to 

find guilt beyond a reasonable doubt.” Caraballo-Rodriguez, 

726 F.3d at 430 (internal quotation marks omitted).

Crumbock also testified that his wallet and cell phone 

were stolen. Santos makes no specific argument as to his 

robbery conviction. He pins his entire sufficiency challenge 

on D.W.’s apparently erroneous description of her assailant as 

having a lazy eye, and on Crumbock’s description of the 

getaway car as “maybe like a Lincoln, I’m not sure” and his 

statement that he “believe[d]” it was the car’s roof that had a 

different color than the rest of the car (as opposed to the 

hood). App. 526. The jury’s verdict demonstrates that it did 

not find these minor differences consequential, which is

wholly rational in light of Crumbock and D.W.’s 

identification of Santos as the assailant, the U.S. Park 

Ranger’s corroborative testimony about the man he saw 
20

“drag[] a woman” in the street, App. 651, and escape in a car 

registered to the mother of Baldwin’s child, Schmotzer’s 

testimony that she heard a woman scream and saw Baldwin 

running in the street after having seen several men get out of 

a gold car ten to twenty minutes earlier, and the fact that the 

Centenos and Robles were found in the same car two days 

after the assault. For these reasons, the evidence is sufficient 

to sustain Santos’s convictions on Counts Four and Five and 

we will affirm his conviction on these counts. 

 

B

We next address Baldwin’s constructive amendment 

argument. Although the evidence is sufficient to support 

Baldwin’s convictions on Counts One and Two for the June 

16 assault, we cannot be sure that the jury did not rely on an 

uncharged theory of liability for its verdict. The Government 

told the jury that it could convict Baldwin of aiding and 

abetting the June 16 assault based solely on his role as the 

driver of the getaway car. Baldwin asserts that this amounted

to a constructive amendment of the Indictment because it 

permitted the jury to convict him of aiding and abetting based

on facts that would support a conviction for the offense of 

accessory after the fact, which was not charged.10 We agree. 

 

10 Baldwin preserved his objection and thus we review 

for harmless error. Neder v. United States, 527 U.S. 1, 7 

(1999). We note, however, that because “[a] constructive 

amendment of the charges against a defendant deprives the 

defendant of his/her substantial right to be tried only on 

charges presented in an indictment returned by a grand jury,” 

United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) 

(internal quotation marks and citation omitted), constructive 
21

The Fifth Amendment provides that “[n]o person shall 

be held to answer for a capital, or otherwise infamous crime, 

unless on a presentment or indictment of a Grand Jury.” U.S. 

Const. amend. V. “Because of this constitutional guarantee, a 

court cannot permit a defendant to be tried on charges that are 

not made in the indictment against him.” United States v. 

Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010) (internal 

quotation marks and citation omitted). “From this rule comes 

the general prohibition against constructive amendments.” Id. 

A constructive amendment occurs when,

in the absence of a formal amendment, the 

evidence and jury instructions at trial modify 

essential terms of the charged offense in such a 

way that there is a substantial likelihood that the 

jury may have convicted the defendant for an 

offense differing from the offense the 

indictment returned by the grand jury actually 

charged. 

United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006). 

Put differently, “[a]n indictment is constructively amended 

when evidence, arguments, or the district court’s jury 

instructions effectively amends the indictment by broadening 

the possible bases for conviction from that which appeared in 

the indictment.” United States v. McKee, 506 F.3d 225, 229 

 

amendments “are per se reversible under harmless error 

review,” United States v. Syme, 276 F.3d 131, 136 (3d Cir. 

2002). In addition, because a constructive amendment claim 

presents a question of law, we exercise plenary review. 

United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).
22

(3d Cir. 2007) (internal quotation marks, alteration, and 

citation omitted).

To determine whether the Government constructively 

amended the Indictment here, we consider whether: (1) 

through its summation, the Government effectively 

“modif[ied] essential terms of” the aiding and abetting assault 

charges against Baldwin, Daraio, 445 F.3d at 259; and (2) in 

so doing, “broaden[ed] the possible bases for conviction from 

that which appeared in the [I]ndictment,” McKee, 506 F.3d at 

229 (internal quotation marks omitted). 

In its rebuttal summation, the Government noted that 

defense counsel had “mentioned aiding and abetting” with 

respect to Baldwin. App. 920. It then told the jury with 

respect to the assault charge:

If he was a getaway driver, driving his car away 

from a crime scene after the victim fell to the 

ground and he knowingly is driving the car, that 

alone, he’s guilty, any one of these.

App. 920. In telling the jury that one can aid and abet an 

assault after the blows were struck, the Government 

effectively “modif[ied] essential terms of the” charges against 

Baldwin. Daraio, 445 F.3d at 259. This is because the 

assault offense was completed by the time Baldwin entered 

the car. 

An offense is completed “when each element of the 

offense has occurred.” United States v. Yashar, 166 F.3d 

873, 875 (7th Cir. 1999). At least as the jury was instructed 

here, assault requires proof of an “intentionally striking” of 
23

the victim, App. 957-59; see also United States v. Davis, 726 

F.3d 357, 360 (2d Cir. 2013), or making “some form of 

physical contact” with the victim, Herron, 539 F.3d at 886. 

An assault continues for as long as the striking occurs, but 

once the contact is done, the crime is complete. Since aiding 

and abetting requires a deed that facilitates the completion of 

a crime, any such acts must logically occur before the crime 

is completed. Indeed, “where the defendant merely 

provide[s] assistance to the perpetrator of the actual crime 

after its completion—and nothing more—a conviction for 

aiding and abetting the principal regarding that crime cannot 

stand.” United States v. Barlow, 470 F.2d 1245, 1249 (D.C. 

Cir. 1972); see also United States v. Figueroa-Cartagena, 612 

F.3d 69, 74 (1st Cir. 2010) (“[A] person cannot be found 

guilty of aiding and abetting a crime that already has been 

committed.” (internal quotation marks and citation omitted)).

Here, the Government argued to the jury that it could 

find Baldwin guilty of aiding and abetting the assault of 

Lokhande based solely on his role as the “getaway driver, 

driving his car away from a crime scene.” App. 920. By the 

time Baldwin and Santos drove away, however, Lokhande 

had already been physically attacked and the assault had been 

completed. The Government’s assertion that the jury could 

find Baldwin guilty of aiding and abetting based only on 

helping Santos and the others flee the scene of the crime was

therefore incorrect. Indeed, as Baldwin points out, such 

conduct is consistent with the separate crime of being an 

accessory after the fact, a crime that was not charged. See

United States v. Salamanca, 990 F.2d 629, 637-40 (D.C. Cir. 

1993) (holding that flight from the scene of an assault along 

with the principal does not alone constitute aiding and 

abetting but may be “strong evidence” of being an accessory 
24

after the fact); see also Figueroa-Cartagena, 612 F.3d at 73-74 

(stating that aiding and abetting and being an accessory after 

the fact are “separate offense[s] with separate elements and [] 

separate punishment[s]”); 18 U.S.C. § 3 (defining the crime 

of being an accessory after the fact to include assisting an 

offender, “knowing that an offense . . . has been committed”). 

Thus, insofar as the Government’s rebuttal summation 

suggested to the jury that it could find Baldwin guilty of 

aiding and abetting for conduct that amounts to being an 

accessory after the fact, it “modif[ied] essential terms of” the 

Indictment by suggesting that the jury could convict Baldwin 

for an uncharged crime. Daraio, 445 F.3d at 259. Baldwin 

was not indicted for being an accessory after the fact, and

“there is a substantial likelihood that the jury may have 

convicted [Baldwin] for an offense differing from the offense 

the [I]ndictment returned by the grand jury actually charged.”

Id. at 260. The Government’s rebuttal summation 

“broaden[ed] the possible bases for conviction from that 

which appeared in the [I]ndictment” and thereby 

constructively amended it. McKee, 506 F.3d at 229. 

Not every stray remark in an argument or misstatement 

in an instruction necessarily results in a constructive 

amendment. Indeed, such remarks may be cured with 

limiting or corrected instructions. See United States v. 

Foster, 507 F.3d 233, 242-43 (4th Cir. 2007) (declining to 

conclude that the Government had constructively amended 

the indictment when, during rebuttal, it suggested that the jury 

could determine the size of the charged conspiracy, in part 

because the district court instructed the jury in a manner 

consistent with the indictment, which charged a conspiracy of 

a specific size). Here, the “jury instructions as a whole” did 

not make clear that finding that Baldwin had acted as the 
25

getaway driver alone was insufficient to prove that he had 

aided and abetted the assault. Daraio, 445 F.3d at 260-61 

(considering whether, notwithstanding the possibility that the 

evidence presented by the Government had constructively 

amended the indictment, the jury instructions “[o]verall . . . 

properly focused the jury” on the defendant’s “conduct as 

charged in the indictment”). Because the instructions did not 

“ensure[] that the jury would convict [Baldwin], if at all, for a 

crime based on conduct charged in the [I]ndictment,” id. at 

260, we must vacate Baldwin’s convictions on Counts One 

and Two and remand for a new trial on those counts.11 See

United States v. Syme, 276 F.3d 131, 156 (3d Cir. 2002).

C

Finally, we consider Santos’s challenge to his 

conviction and sentence on Count Two, assault by striking in 

violation of 18 U.S.C. § 113(a)(4), based upon the Double 

Jeopardy Clause. Santos asserts that his conviction and 

sentence on this count violates the Double Jeopardy Clause 

because assault by striking is a lesser-included offense of 

 

11 Because we are ordering a new trial, we need not 

address Baldwin’s arguments about his sentence. We do, 

however, remind the District Court of its obligation to address 

every defendant personally and invite him or her to address 

the Court before imposing sentence. Fed. R. Crim. P. 

32(i)(4)(A)(ii). Asking counsel if his or her client would like 

to speak at sentencing does not satisfy Rule 32’s mandate that 

a sentencing judge directly address the defendant. See, e.g.,

United States v. Adams, 252 F.3d 276, 279 (3d Cir. 2001).
26

Count One, assault resulting in serious bodily injury in 

violation of 18 U.S.C. § 113(a)(6).12 

Under the Double Jeopardy Clause, courts may not 

impose “greater punishment than the legislature intended to 

impose for a single offense.” United States v. Miller, 527 

F.3d 54, 70 (3d Cir. 2008) (internal quotation marks omitted). 

“For the purpose of double jeopardy analysis, two offenses 

are the same if one is a lesser-included offense of the other 

under the ‘same-elements’ (or Blockburger) test.” Id. at 71; 

see generally Blockburger v. United States, 284 U.S. 299, 304 

(1932). The key inquiry under the “same-elements” or 

“Blockburger” test is “whether each offense contains an 

element not contained in the other; if not, they are the same 

offen[s]e.” Miller, 527 F.3d at 71 (internal quotation marks 

omitted).

The Government concedes error on this issue because 

of the way the jury instructions were phrased. With respect to 

assault by striking, the jury instructions required a finding of 

“intentionally striking, beating, or wounding,” and with 

respect to assault resulting in serious bodily injury, the jury 

instructions required a finding of “intentionally striking or 

wounding” resulting in serious bodily injury. App. 957-59. 

Thus, under these instructions, the only difference between 

the two offenses is that one required proof of serious bodily 

injury and the other did not, making the latter a lesser 

included offense. Thus, we will vacate Santos’s sentence on 

 

12 Santos concedes that he did not preserve this issue 

for appeal and that it is subject to plain error review. United 

States v. Miller, 527 F.3d 54, 70 (3d Cir. 2008). 
27

Count Two and remand so the District Court can merge the 

two convictions on Counts One and Two and resentence him. 

United States v. Tann, 577 F.3d 533, 543 (3d Cir. 2009).

III

For the foregoing reasons, we will: (1) affirm Santos’s 

convictions on Counts One, Four, and Five, and vacate and 

remand for resentencing as to Counts One and Two; and (2) 

vacate Baldwin’s convictions on Counts One and Two and

remand for a new trial.