United States Court of Appeals

For the First Circuit

No. 19-2209

UNITED STATES OF AMERICA,

Appellant,

v.

EDDIE GUERRERO-NARVÁEZ and KEYVAN CARTAGENA-SUAREZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Thompson and Lipez, Circuit Judges,

and Laplante,* District Judge.

John M. Pellettieri, with whom W. Stephen Muldrow, United 

States Attorney, Mariana E. Bauzá-Almonte and David T. Hanek, 

Assistant United States Attorneys, Brian A. Benczkowski, Assistant 

Attorney General, David P. Burns, Acting Assistant Attorney 

General, Robert A. Zink, Acting Deputy Assistant Attorney General, 

and Kirby A. Heller, Criminal Division, Appellate Section, U.S. 

Department of Justice, were on brief, for appellant.

Alejandra Bird López, Research and Writing Specialist, with 

whom Eric Alexander Vos, Federal Public Defender, and Franco L. 

Pérez-Redondo, Assistant Federal Public Defender, were on brief,

for appellee Eddie Guerrero-Narváez.

* Of the District of New Hampshire, sitting by designation.
Wilfredo Ríos Méndez for appellee Keyvan Cartagena-Suarez.

March 16, 2022
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LIPEZ, Circuit Judge. A jury convicted Eddie GuerreroNarváez and Keyvan Cartagena-Suarez of aiding and abetting each 

other in the commission of a carjacking in violation of 18 U.S.C. 

§§ 2 and 2119. Guerrero-Narváez and Cartagena-Suarez then filed 

separate post-verdict motions for judgment of acquittal. 

Guerrero-Narváez argued that the government's evidence was 

insufficient to support the jury's conclusion that he possessed 

the requisite specific intent to violate the federal carjacking 

statute. The district court agreed, granting Guerrero-Narváez's

motion and explaining that no reasonable trier of fact could find

from the evidence presented at trial that Guerrero-Narváez 

possessed the intent to seriously harm or kill, if necessary, at 

the time he took the car. See 18 U.S.C. § 2119. With GuerreroNarváez acquitted, the court granted Cartagena-Suarez's motion,

too.1 The government appeals from the district court's orders

granting the motions for acquittal. We affirm.

1 Surveillance video and witness testimony indicated that 

Cartagena-Suarez was present at the gas station before and after 

the taking of the vehicle, but that Guerrero-Narváez took 

possession of the car by himself. Intent "at the moment the 

defendant demanded or took control over" the car is an element of 

the federal crime of carjacking. United States v. Díaz-Rosado, 

857 F.3d 116, 121 (1st Cir. 2017) (quoting Holloway v. United 

States, 526 U.S. 1, 12 (1999)). If Guerrero-Narváez did not 

possess the requisite intent at the moment he took possession of 

the car, there was no federal carjacking crime. Hence, there was 

no basis for finding Cartagena-Suarez guilty as an aider and 

abettor. See Rosemond v. United States, 572 U.S. 65, 71 (2014) 

(recognizing that, for aiding and abetting liability to attach, 

someone must commit the underlying crime). The government makes 
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I.

A. Factual Background

We recount the facts in the light most favorable to the 

verdict. United States v. Mubayyid, 658 F.3d 35, 41 (1st 

Cir. 2011). On January 3, 2018, Keysha Silva-Rivera parked her 

silver BMW SUV adjacent to a gas pump at a Puma gas station in 

Carolina, Puerto Rico.2 Silva-Rivera's two children were in the 

backseat. As Silva-Rivera began to exit her vehicle, GuerreroNarváez approached her. Guerrero-Narváez, who is five feet, nine 

inches tall and weighs over two-hundred pounds, is significantly 

larger than Silva-Rivera, who is just under five feet tall. 

Guerrero-Narváez was dressed in a red T-shirt and red shorts, and 

Silva-Rivera testified that she thought he was going to "offer 

[her] to serve gas." Silva-Rivera remained partially within the 

vehicle -- with one foot inside and one foot on the ground -- while 

Guerrero-Narváez spoke to her for about twenty seconds from a 

distance of two to three feet.

Silva-Rivera testified that Guerrero-Narváez told her 

that he "was sent" to "take the vehicle from [her]." She "thought 

no argument that there would be any basis for finding CartagenaSuarez guilty of aiding and abetting a carjacking independently of 

Guerrero-Narváez's culpability.

2 In addition to witness testimony, the government introduced 

into evidence the recorded surveillance camera video, which we 

have viewed as part of the record in this case.
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it was a prank" at first and asked if the taking "had something to 

do with the owner of the vehicle." Guerrero-Narváez said that "if 

[she] cooperate[d], he [was not] going to harm either [her] or 

[her] children." Silva-Rivera testified that Guerrero-Narváez 

touched his shirt in a "sort of intimidating" manner as he spoke 

to her. Silva-Rivera understood the gesture to indicate that

Guerrero-Narváez was armed, although Guerrero-Narváez never showed 

her a gun or any weapon. 

Silva-Rivera asked Guerrero-Narváez if he would allow 

her children to get out of the car, and he agreed to do so. SilvaRivera stepped out of the car and Guerrero-Narváez stepped back, 

leaving enough space for Silva-Rivera to move past him unimpeded. 

Guerrero-Narváez remained standing by the driver's door as SilvaRivera walked to the back door on that side of the car. SilvaRivera opened the door to let her two children exit the SUV, and 

the three of them walked to the back of the car. Silva-Rivera

opened the trunk. After a few seconds, Guerrero-Narváez also 

walked to the back of the car and stood at the left edge of the 

trunk with his hand resting on the now-uplifted hatch. GuerreroNarváez and Silva-Rivera conversed periodically throughout this 

time.

As Silva-Rivera removed items from the trunk of the car, 

Guerrero-Narváez neither rushed nor threatened her. At one point, 

Guerrero-Narváez reached into the trunk and handed Silva-Rivera an 
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umbrella. He then assisted her with retrieving another item. 

After she removed items from the trunk, Silva-Rivera walked along 

the non-driver side of the car to the front door to "check that 

[she] didn't leave anything." Silva-Rivera's two children 

remained standing at the back of the car, next to Guerrero-Narváez. 

While Silva-Rivera was rummaging in the front passenger 

compartment, Guerrero-Narváez returned to the front of the car and 

climbed into the driver's seat. He asked Silva-Rivera "how to 

push the seat back." Silva-Rivera finished rummaging in the car 

after Guerrero-Narváez got into the vehicle. Silva-Rivera walked 

to the back of the car and attempted to close the hatch, but 

Guerrero-Narváez began to drive away before she could close it. 

Silva-Rivera and her children remained standing near the gas pump 

while Guerrero-Narváez, driving the silver SUV, exited the gas 

station.

After Guerrero-Narváez left, Silva-Rivera -- still 

standing near the gas pump with her children -- called her husband. 

She then called her mechanic, who was the prior owner of the BMW, 

and asked him to look out for the stolen vehicle. About five 

minutes after Guerrero-Narváez drove off in the car, Silva-Rivera

and her children entered the store of the gas station. She called 

the police about twenty minutes after Guerrero-Narváez took the 
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car,3 telling the 911 operator that "an individual held me up with 

the children and took my SUV." She reported that the individual 

"stood at the door" and said "You have to get out with the 

children." The 911 operator asked if the individual had a weapon, 

to which Silva-Rivera replied:

No. No. No. He had -- he said it was 

supposedly an order that they gave him. But 

they tell me here at the gas station that he's 

been going around for a while already, asking 

people for money. That they supposedly gave 

him an order that he has to take the SUV. 

That's what he told me. I stayed calm. I 

didn't want to argue . . . . Because I have 

two minors in the backseat. 

Silva-Rivera did not see Cartagena-Suarez during the 

incident, but surveillance camera footage shows Cartagena-Suarez 

and Guerrero-Narváez loitering at the gas station over an hour 

before the carjacking and interacting in the minutes preceding the 

incident. When Silva-Rivera called her mechanic after GuerreroNarváez drove away in her car, she described the appearance of the 

man who stole the car. The mechanic subsequently observed the BMW 

drive by with its hatch open and two men inside, including a man 

who matched Silva-Rivera's description of the car thief and a 

second "short and thin" man in the passenger seat. Silva-Rivera

learned of the second man prior to calling 911, and she informed 

3 Silva-Rivera testified that she waited so long to call the 

police "[b]ecause I knew they weren't going to come fast." SilvaRivera waited at the gas station for approximately 40 minutes but 

the police never arrived.
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the dispatcher that her car was being driven by two men. Later 

that evening, the mechanic observed the short and thin man driving 

the stolen BMW. Cartagena-Suarez's driver's license was found 

inside the vehicle when it was recovered.

B. Procedural History

A superseding indictment charged both appellants with 

"aiding and abetting each other" in the commission of a carjacking 

in violation of 18 U.S.C. § 2119. At the close of the government's 

case at trial,4 appellees each moved for a judgment of acquittal 

under Federal Rule of Criminal Procedure 29. The court took the 

motions under advisement, and the jury subsequently convicted 

appellees of aiding and abetting a carjacking in violation of 

18 U.S.C. §§ 2 and 2119. Appellees renewed their Rule 29 motions,

which the court denied. After appellees submitted written motions

for judgment of acquittal, however, the court granted GuerreroNarváez's motion. The court then issued an order finding 

Cartagena-Suarez's motion "moot" in light of the relief granted to 

Guerrero-Narváez but granting Cartagena-Suarez's motion 

"[n]otwithstanding." The court entered a judgment of acquittal 

for both Guerrero-Narváez and Cartagena-Suarez.

In a thoughtful opinion, the district court explained 

that the evidence at trial was insufficient to prove beyond a 

4 Appellees did not present any evidence.
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reasonable doubt that Guerrero-Narváez possessed the specific 

intent required by the statute. United States v. Guerrero-Narvaez, 

415 F. Supp. 3d 281, 288-94 (D.P.R. 2019). The government had 

argued in response to Guerrero-Narváez and Cartagena-Suarez's

motions that, in the absence of a weapon or evidence of force,5

Guerrero-Narváez's specific intent could be inferred from five 

facts "proven" at trial: Guerrero-Narváez's size relative to 

Silva-Rivera's; the fact that Guerrero-Narváez -- not the smaller 

Cartagena-Suarez -- committed the taking of the vehicle; GuerreroNarváez's arrival on foot; Guerrero-Narváez's constant "following"

of Silva-Rivera during the taking; and the nature of GuerreroNarváez's threat. After reviewing the gas station surveillance 

camera footage, Silva-Rivera's trial testimony, and an audiotape 

of Silva-Rivera's 911 call, the district court analyzed each of 

the factors cited by the government and concluded that they did 

"not comport with any case in which § 2119's intent element has 

been satisfied." Guerrero-Narvaez, 415 F. Supp. 3d at 293. We 

summarize the court's analysis.

5 Silva-Rivera did not observe a weapon and no weapon was 

recovered from the car or Guerrero-Narváez's person. In the 

absence of direct evidence of a weapon, however, the government 

now argues on appeal that it was reasonable for the jury to infer 

that Guerrero-Narváez nevertheless possessed a weapon at the time 

of the taking. This argument, and the significance of possession 

of a weapon during a carjacking, are discussed infra.
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1. Guerrero-Narváez's Size

The court rejected the government's argument that the 

fact that "Guerrero[-Narváez] is a large individual, in fact much 

larger than Silva[-Rivera], . . . by itself ([]or in conjunction 

with the other factors the government proposes) indicate[s] that 

he intended to seriously harm or kill her." Id. at 291.

2. Guerrero-Narváez rather than Cartagena

The district court likewise found that "a reasonable 

factfinder cannot conclude that choosing to send a larger 

individual" -- in this case, Guerrero-Narváez rather than his 

smaller codefendant -- "sufficiently proves, beyond a reasonable 

doubt, the conditional intent to seriously harm or kill the 

victim." Id.

3. Arrival on Foot

The court concluded that "the fact that Guerrero[-

Narváez] arrived on foot sufficiently establishes just one thing: 

he did not have a car before taking Silva[-Rivera]'s." Id. The 

court rejected as "impermissible speculation" the government's 

suggestion that Guerrero-Narváez's intent could be inferred from 

the proposition that he "would need a car to flee and would be 

unable to abandon the carjacking without the use of force." Id.

4. Following Silva-Rivera Closely

The court characterized "the government's proposition 

that Guerrero[-Narváez] followed Silva[-Rivera] around the vehicle 
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and kept her close at all times" as "false," noting that "the 

evidence conclusively demonstrates [from the security camera 

video] that Guerrero[-Narváez] neither followed Silva[-Rivera]

around the vehicle nor kept in constant physical proximity to her 

throughout the taking." Id. at 291-92.

5. Nature of Guerrero-Narváez's Threat

Finally, the district court rejected the government's 

reliance on the manner and content of Guerrero-Narváez's threat to 

Silva-Rivera. The court explained that "the fact that Guerrero[-

Narváez] touched his t-shirt in a manner that signaled he was armed 

weighs against an inference that he intended to use brute force to 

harm or kill Silva[-Rivera], if necessary to take the vehicle." 

Id. at 292. "Had Guerrero[-Narváez] intended to use brute force," 

the court reasoned, "he would have framed his threat in that 

fashion. But, instead, Guerrero[-Narváez] relied on faking he had 

a gun to obtain Silva[-Rivera]'s compliance. That is a textbook 

bluff." Id. (emphasis omitted). The court concluded: 

The evidence presented at trial tells the 

story of an unarmed defendant who takes a 

victim's vehicle after delivering an empty 

threat and bluffing he is carrying a 

weapon. . . . The evidence here is not 

sufficient for a reasonable factfinder to 

conclude that Guerrero[-Narváez] possessed 

the requisite mens rea. As such, 

Guerrero[-Narváez]'s Rule 29 motion must be 

granted.

Id. at 293. The government appealed. 
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II.

A. Standard of Review

We review de novo a district court's order granting a 

post-verdict motion for judgment of acquittal. Mubayyid, 658 F.3d 

at 47. We will uphold the judgment "only if the evidence, viewed 

in the light most favorable to the government, could not have 

persuaded any trier of fact of the defendants' guilt beyond a 

reasonable doubt." Id. In other words, we must reverse the 

acquittal and let the guilty verdict stand if the verdict "finds 

support in a plausible rendition of the record." Id. (quoting 

United States v. Rivera Rangel, 396 F.3d 476, 482 (1st Cir. 2005)). 

However, we need not credit "unreasonable, insupportable, or 

overly speculative" interpretations of the evidence. United 

States v. Pothier, 919 F.3d 143, 146 (1st Cir. 2019) (quoting 

Leftwich v. Maloney, 532 F.3d 20, 23 (1st Cir. 2008)).

We consider the evidence "in its totality," meaning that 

"[i]ndividual pieces of evidence that might not be enough on their 

own . . . might add up to tell th[e] tale" of a defendant's guilt 

beyond a reasonable doubt. United States v. Guzman-Ortiz, 975 

F.3d 43, 54 (1st Cir. 2020). But, just as "a judge may not pursue 

a 'divide and conquer' strategy in considering whether the 

circumstantial evidence [] adds up . . ., neither may a judge 

'stack inference upon inference in order to uphold the jury's 

verdict.'" Id. at 55 (quoting United States v. Valerio, 48 F.3d 
- 13 -

58, 64 (1st Cir. 1995)). "[I]f the evidence, when viewed in the 

light most favorable to the government, 'gives equal or nearly 

equal circumstantial support' to theories of guilt and innocence, 

the convictions must be reversed." United States v. Martin, 228 

F.3d 1, 10 (1st Cir. 2000) (quoting United States v. Andújar, 49 

F.3d 16, 20 (1st Cir. 1995)).

B. The Federal Carjacking Statute

The federal carjacking statute punishes "[w]hoever, with 

the intent to cause death or serious bodily harm[,] takes a motor 

vehicle . . . from the person or presence of another by force and 

violence or by intimidation, or attempts to do so." 18 U.S.C. 

§ 2119 (emphasis added). Like much of federal criminal law, 

Congress enacted the carjacking statute pursuant to its authority 

under the Commerce Clause. See United States v. Comstock, 560 

U.S. 126, 136 (2010) (describing the sources of congressional 

authority to make federal criminal law); Torres v. Lynch, 578 U.S. 

452, 457 (2016) (identifying an interstate commerce nexus as a 

common jurisdictional hook in federal criminal law); 18 U.S.C. 

§ 2119 (limiting the statute's application to vehicles involved in 

interstate or foreign commerce). 

Although Congress's authority to regulate interstate 

commerce is broad, United States v. Lopez, 514 U.S. 549, 558-59 

(1995), it may not "regulate noneconomic, violent criminal conduct 

based solely on that conduct's aggregate effect on interstate 
- 14 -

commerce," United States v. Morrison, 529 U.S. 598, 617 (2000). 

Instead, so as not to infringe on the states' police power -- the 

"broad authority to enact legislation for the public good" that is 

reserved to the states, Bond v. United States, 572 U.S. 844, 854 

(2014) -- the Constitution requires that federal criminal law 

distinguish between conduct that "is truly national and what is 

truly local." Morrison, 529 U.S. at 617; see also id. at 618 

("[W]e can think of no better example of the police power, which 

the Founders denied the National Government and reposed in the 

States, than the suppression of violent crime and vindication of 

its victims."). 

In its decisions policing the boundary between federal 

and state criminal law, the Supreme Court has cautioned that 

"'unless Congress conveys its purpose clearly, it will not be 

deemed to have significantly changed the federal-state balance' in 

the prosecution of crimes." Jones v. United States, 529 U.S. 848, 

858 (2000) (quoting United States v. Bass, 404 U.S. 336, 349 

(1971)); accord Bond, 572 U.S. at 860. The Court has stringently 

construed the mens rea requirement of federal criminal statutes to 

ensure that expansive interpretations of those statutes' intent 

provisions do not "transform relatively minor state offenses into 

federal felonies." Rewis v. United States, 401 U.S. 808, 812 

(1971); see also Fowler v. United States, 563 U.S. 668, 684 (2011) 

(Scalia, J., concurring) (cautioning against construing a federal 
- 15 -

statute's mens rea requirement in a way that would "federalize 

crimes" that lack a federal nexus).

The federal carjacking statute reflects congressional 

intent to target "a particular type of robbery" with the goal of 

deterring especially violent crime. Holloway v. United States, 

526 U.S. 1, 8-9 (1999); United States v. Rosario-Díaz, 202 F.3d 

54, 63 (1st Cir. 2000) (describing congressional intent to narrowly 

define § 2119's mens rea element). To ensure that federal 

jurisdiction does not extend "beyond the point envisioned by 

Congress and intrud[e] into realms specifically left to" the states 

and territories, the mens rea element is narrow in two respects. 

United States v. Díaz-Rosado, 857 F.3d 116, 125 (1st Cir. 2017) 

(Torruella, J., concurring). 

First, by requiring that a defendant specifically intend 

to cause serious bodily harm or death,6 the federal statute 

criminalizes vehicle theft only where the risk of violence is real. 

Holloway, 526 U.S. at 11 ("While an empty threat, or intimidating 

bluff, would be sufficient to satisfy the [force or intimidation] 

element, such conduct, standing on its own, is not enough to 

satisfy § 2119's specific intent element."); see also Rosario6 The Supreme Court has held that this specific intent 

encompasses both unconditional and conditional intent "at the 

moment the defendant demanded or took control over" the vehicle. 

Holloway, 526 U.S. at 11-12. In other words, the government must 

prove that a defendant "possessed the intent to seriously harm or 

kill the driver if necessary to steal the car." Id. at 12.
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Díaz, 202 F.3d at 63 (citing Holloway, 526 U.S. at 1). State and 

territorial governments retain the authority to criminalize 

nonviolent car theft. 

Second, mere intent to harm is not enough to bring a car 

theft within the reach of federal criminal enforcement. By 

requiring intent to cause at least "serious bodily harm," the 

statute ensures that federal prosecutorial authority extends only 

to those car thefts where a defendant possessed particularly 

violent intent. See Díaz-Rosado, 857 F.3d at 126 (Torruella, J., 

concurring) (suggesting that the level of harm contemplated by the 

statute involves extreme physical pain, protracted and obvious 

disfigurement, or protracted loss or impairment of bodily 

function).

We have held that touching or threatening a victim while 

brandishing a firearm is sufficient evidence of intent "to cause 

death or serious bodily harm" within the meaning of § 2119. E.g., 

United States v. Catalán-Roman, 585 F.3d 453, 474 (1st Cir. 2009); 

see also Díaz-Rosado, 857 F.3d at 126 (Torruella, J., concurring) 

(citing cases). Other circuits have reached the same conclusion. 

See, e.g., United States v. Felder, 993 F.3d 57, 68 (2d Cir. 2021);

United States v. Lake, 150 F.3d 269, 272 (3d Cir. 1998); United 

States v. Small, 944 F.3d 490, 499-500 (4th Cir. 2019); United 

States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001); United States

v. Wright, 993 F.3d 1054, 1065 (8th Cir. 2021); United States v. 
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Vallejos, 421 F.3d 1119, 1123-24 (10th Cir. 2005). But proof of 

intent to cause serious bodily harm or death does not require proof 

of the involvement of a weapon. Díaz-Rosado, 857 F.3d at 121; 

United States v. Rodríguez-Berríos, 573 F.3d 55, 66-67 (1st Cir. 

2009). "Just as one can use brute force or a variety of items to 

kill or cause serious harm, one can also use such force or items 

to manifest an intent to cause death or serious harm if necessary." 

Díaz-Rosado, 857 F.3d at 121. 

Generally, the key fact distinguishing a situation in 

which a defendant possesses the requisite specific intent from a 

situation in which a defendant merely makes an "empty threat," 

Holloway, 526 U.S. at 11, is the defendant's actual and willing 

use of force in carrying out the carjacking. E.g., Díaz-Rosado, 

857 F.3d at 121; Rodríguez-Berríos, 573 F.3d at 66-67. Even 

"plac[ing] a 'cold and hard' item to [a victim's] neck" -- behavior 

that the victim likely would interpret as a threat involving a 

weapon -- and "sa[ying] '[d]rive, drive, drive, drive'" has been 

held insufficient to establish § 2119's requisite intent, absent 

evidence that the defendant actually had a weapon or threatened to 

harm the victim. United States v. Bailey, 819 F.3d 92, 97 (4th

Cir. 2016) (third alteration in original).7

7 The district court relied on Bailey to conclude that 

Guerrero-Narváez's threat was "a textbook bluff." GuerreroNarvaez, 415 F. Supp. 3d at 292. Bailey appears to be the only 

reported case in which a court has vacated a conviction under 
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C. Application

To establish § 2119's intent element, the government had 

to prove that Guerrero-Narváez "would have at least attempted to 

seriously harm or kill . . . if that action had been necessary to 

complete the taking of the car." Holloway, 526 U.S. at 12. At 

trial, the government bore the burdens of persuasion and production 

on the intent element of the crimes. See Pothier, 919 F.3d at

148; see also Jackson v. Virginia, 443 U.S. 307, 316 (1979) ("[N]o 

person shall be made to suffer the onus of a criminal conviction 

except upon sufficient proof -- defined as evidence necessary to 

convince a trier of fact beyond a reasonable doubt of the existence 

of every element of the offense."). We consider the totality of

evidence on which the government relies to determine whether -- as 

the government argues -- it was reasonable for the jury to infer

beyond a reasonable doubt that Guerrero-Narváez possessed the 

necessary intent. 

On appeal, the government argues that "a reasonable 

juror could rely on Guerrero[-Narváez]'s threatening words alone

to conclude that he acted with the requisite intent."8 According 

§ 2119 because the evidence presented at trial was insufficient to 

establish the requisite specific intent. The district court 

initially denied Bailey's motion for acquittal. On appeal, the 

Fourth Circuit vacated the conviction and remanded for entry of 

judgment of acquittal. See 819 F.3d at 94, 98.

8 As noted, Guerrero-Narváez told Silva-Rivera that he had 

been "sent" to "take the vehicle from [her]" and that "if [she] 

cooperate[d], he [was] not going to harm either [her] or her 
- 19 -

to the government, "[t]he 'or else' in that threat, while implicit, 

was clear." But this rationale ignores Holloway's admonition that 

an empty threat or intimidating bluff, standing on its own, cannot 

satisfy § 2119's intent requirement. See Holloway, 526 U.S. at 

11. Accepting the government's argument would collapse Holloway's 

distinction between an empty threat and a credible manifestation 

of intent to harm. This is exactly the type of conflation Congress 

sought to avoid by imposing the stringent mens rea requirement. 

See id. at 11-12. Because an empty threat does not satisfy this 

requirement, it was necessary for the district court to consider

Guerrero-Narváez's words in conjunction with his "'visible conduct 

and what the victim might reasonably conclude'" from that conduct 

"[t]o determine whether [Guerrero-Narváez's] threat [wa]s empty, 

or [whether] the defendant in fact intended to follow through (if 

necessary)." Guerrero-Narvaez, 415 F. Supp. 3d at 292 (quoting 

Ovalles v. United States, 905 F.3d 1300, 1303 (11th Cir. 2018)).9

In assessing Guerrero-Narváez's conduct during and after 

his initial confrontation with Silva-Rivera, the district court 

children." When Guerrero-Narváez threatened Silva-Rivera, he 

touched his shirt in a "sort of intimidating" manner, which SilvaRivera interpreted as an indication that Guerrero-Narváez was 

armed. 

9 We note that, although our review is de novo, we may 

properly reference the district court's analysis when we think it 

is on the mark. See Doe v. Brown Univ., 943 F.3d 61, 70 (1st Cir. 

2019).
- 20 -

focused, in part, on what it described as the absence of a weapon. 

Possession (or lack) of a weapon is significant because, as the 

court observed, proving intent under § 2119 "is a cut-and-dried 

endeavor [where] the defendant utilized a loaded firearm to take 

the vehicle" or "carried, brandished[,] or used a weapon such as

a knife or a baseball bat." Guerrero-Narvaez, 415 F. Supp. 3d at 

288 (citing cases). 

Recognizing the import of evidence of a weapon, the 

government argues for the first time on appeal that it would have 

been reasonable for the jury to infer that Guerrero-Narváez was 

carrying a weapon when he threatened Silva-Rivera and gestured to 

his shirt.10 This inference, in turn, would support a conclusion 

that he possessed the requisite intent at the time of the taking

on that basis alone. The fact that Guerrero-Narváez was not 

carrying that weapon when he was arrested later in the day does 

not undermine this theory, according to the government, because 

Guerrero-Narváez could have discarded the weapon by then.

But the evidence here is, at best, ambiguous as to the 

presence of a weapon. True, when Guerrero-Narváez first confronted 

10 During the trial, the government did not present evidence 

or argue that Guerrero-Narváez had a weapon. In its opening 

statement, the government informed the members of the jury that 

they would not "see either of these two men pulling out a gun or 

throwing the victim to the ground." And, in its closing argument, 

the government asked rhetorically, "how would this man inflict 

injury upon that woman if he didn't have a gun, if he didn't have 

a knife?" 
- 21 -

Silva-Rivera and gestured at his shirt while threatening harm, she 

understood that gesture as an indication that Guerrero-Narváez 

carried a weapon. However, after her brief interaction with 

Guerrero-Narváez as she took her children out of the car and 

removed personal possessions from it, and shortly after GuerreroNarváez drove off in her car, Silva-Rivera repeatedly answered 

"No, no, no" when the 911 operator asked her if he had a weapon. 

Throughout the entire interaction, Silva-Rivera never observed 

Guerrero-Narváez in possession of a weapon, and the security video 

discloses none. Due to the inescapable ambiguity about whether 

Guerrero-Narváez had a weapon, this case lacks the sort of 

categorical indication of intent to seriously harm or kill that we 

have often observed in other cases when a weapon is present. See, 

e.g., Díaz-Rosado, 857 F.3d at 126 (Torruella, J., concurring) 

(citing cases); Catalán-Roman, 585 F.3d at 474. 

However, as our case law makes clear, even though using 

a weapon to effect a carjacking may be sufficient alone to 

establish § 2119's specific intent, neither the statute nor common 

sense "require[] the presence of such an item." Díaz-Rosado, 857 

F.3d at 121. The ambiguity about whether Guerrero-Narváez had a

weapon is simply one of many factors we consider in addressing the 

dispositive inquiry here: whether the evidence, taken as whole and

viewed in the light most favorable to the jury's verdict, permits

a reasonable factfinder to conclude beyond a reasonable doubt that 
- 22 -

Guerrero-Narváez possessed the requisite intent to seriously harm

or kill, if necessary to take the car, and was not instead making 

a mere empty threat when he confronted Silva-Rivera.

We have previously addressed how the government can 

prove § 2119's demanding mens rea element absent evidence of a 

weapon. In Rodríguez-Berríos, we held that evidence that the 

defendant struck the victim in her car immediately before she and 

her car disappeared, combined with evidence of the defendant's 

prior abuse of and stated desire to harm the victim, was sufficient 

to establish the defendant's intent to kill or cause serious bodily 

harm to the victim at the time of the carjacking. 573 F.3d 55, 

66-67 (1st Cir. 2009). And we determined in Díaz-Rosado that a 

defendant's "initiat[ion of] the heist in circumstances where it 

was virtually certain that violence would be necessary," and the 

use of force at "each juncture" of the carjacking -- including 

grabbing, shoving, struggling with, and ultimately throwing a 

grandmother to the ground -- was sufficient evidence that the 

defendant intended to seriously harm or kill the victim if 

necessary to take the car. 857 F.3d at 121-22. Yet we described 

Díaz-Rosado as "close" because of the demanding standard of intent 

required by § 2119. See id. at 121-22; see also id. at 126 

(Torruella, J., concurring) ("This level of harm contemplated by 

the statute is significant, and requires more than simply injuring 

or threatening to injure the victim."). As the district court 
- 23 -

observed, "[t]he case now before the Court stands in stark 

contrast" to these cases. Guerrero-Narvaez, 415 F. Supp. 3d at 

290. Whereas other § 2119 cases have involved unambiguous evidence 

of a weapon or "some degree of forceful physical contact," the 

district court correctly found it "crucial to the inquiry at hand" 

that "Guerrero[-Narváez] did not use violence or employ force 

against Silva[-Rivera]" or even "touch her at all." Id. Nor was 

this a circumstance where it was virtually certain that violence 

would be necessary to take the car.

The government paradoxically argues that the lack of 

force nevertheless supports the jury's conclusion that GuerreroNarváez possessed the necessary intent. According to the 

government, Silva-Rivera's quick acquiescence to GuerreroNarváez's demand for her car reflects her "reasonable belief that 

Guerrero-Narváez would harm her and her children if she resisted." 

Because Silva-Rivera's feelings of fear and intimidation obviated 

the need for Guerrero-Narváez to use force, the government suggests 

that the lack of force -- combined with Guerrero-Narváez's size, 

threatening words, and allusion to a weapon -- are sufficient to 

establish that Guerrero-Narváez possessed the conditional specific 

intent required by § 2119. In other words, the government suggests 

that, at the moment he confronted Silva-Rivera, Guerrero-Narváez 

intended to cause serious bodily harm or death if necessary to 
- 24 -

take the car but the circumstances of his approach, and SilvaRivera's quick capitulation, made his resort to force unnecessary.

The district court properly rejected this argument. 

Although it acknowledged that "a victim's perception is usually 

instructive as to a perpetrator's intent," the court noted that 

Silva-Rivera's fear did not change its analysis of the other 

factors to which the government pointed as evidence of GuerreroNarváez's specific intent. Guerrero-Narvaez, 415 F. Supp. 3d at 

292-93; see also Bailey, 819 F.3d at 98 n.4 (cautioning against 

"focus[ing] unduly on [the victim']s understandable fear and 

apprehension that he would be killed," as "virtually any robbery

victim . . . will be intimidated and frightened"). As the district

court explained:

An empty threat delivered in a convincing 

manner will typically instill fear in its 

recipient. Still, the recipient's distress 

does nothing to transform the threat itself. 

. . . [A]n empty threat's success in achieving 

its intended purpose -- scaring the recipient 

into compliance -- does not suddenly imbue its 

issuer with an actual intent to injure, maim 

or kill. Put simply, an empty threat is empty

for a reason.

Guerrero-Narvaez, 415 F. Supp. 3d at 293. 

The government argues that Guerrero-Narváez's "size and 

heft" -- though "not evidence by itself of Guerrero[-Narváez]'s 

mental state" -- "at minimum supported the inference that 

Guerrero[-Narváez] would have been able to seriously harm 
- 25 -

Silva[-Rivera] if necessary." But an individual's capacity to do 

harm tells us nothing about his intention to cause harm at that 

particular time. We agree with the district court that a theory 

relying on capacity as evidence of intention is not only off the 

mark, but it also improperly presumes capacity based simply on 

observations about the defendant's physical form. Like the 

district court, we "refuse[] to criminalize a defendant's heft and 

tall stature. An argument to that effect is no more than an offthe-cuff, desperate Hail Mary attempt," Guerrero-Narvaez, 415 F. 

Supp. 3d at 291, at best, and -- at worst -- a step away from more 

invidious propositions.

The district court acknowledged that Guerrero-Narváez's

size and the fact that he "cornered Silva[-Rivera] at the front 

door and temporarily blocked her from exiting the SUV" made his 

threat to Silva-Rivera more credible. Id. at 292. "But," the 

court emphasized, "he did not touch or physically restrain her, 

nor did he apply even a modicum of force." Id. (emphasis omitted). 

Rather, Guerrero-Narváez stayed out of the way while Silva-Rivera

escorted her children from the car and retrieved her belongings 

from both the trunk and the front passenger compartment. Contrary 

to the government's assertion that Guerrero-Narváez closely 

followed Silva-Rivera around the car, he assisted her in retrieving

her possessions from the car. As the district court observed, 

"Guerrero[-Narvaez]'s conduct does not evince a willingness to use 
- 26 -

his size for anything other than posturing in a menacing way." 

Id. 

As noted earlier, in concluding that Guerrero-Narváez's

threat was empty, the court found it significant that

"Guerrero[-Narváez] touched his t-shirt in a manner that signaled 

he was armed" and "relied on faking he had a gun to obtain 

Silva[-Rivera]'s compliance," rather than "fram[ing] his threat in 

[a] fashion" suggesting an "inten[t] to use brute force." Id.

(emphasis omitted).11 He did not, for example, say that he was 

armed when he made the "intimidating" gesture. Although the 

government argues that Guerrero-Narváez's threat contained a 

clear, implicit "or else," the district court explained that 

Guerrero-Narváez's behavior "weighs against an inference that he 

intended to use brute force to harm or kill Silva[-Rivera], if 

necessary to take the vehicle." Id. (emphasis added). "Had 

Guerrero[-Narváez] intended to use brute force," the court 

reasoned, "he would have framed his threat in that fashion." Id. 

The government argues that the district court's analysis

of Guerrero-Narváez's gesture and threat was incompatible with its 

obligation to construe the evidence in the light most favorable to 

the government. But this is a superficial criticism of the court's 

11 To repeat, Guerrero-Narváez told Silva-Rivera that "if 

[she] cooperate[d], he [was] not going to harm either [Silva] []or 

[her] children."
- 27 -

reasoning. The district court was aware that § 2119 requires more 

than just intent to harm. See 18 U.S.C. § 2119 (requiring "intent 

to cause death or serious bodily harm" (emphasis added)). After 

all, our understanding of the phrase "serious bodily harm" draws 

meaning from the reference to "death" in the same statutory 

provision. See United States v. García-Ortiz, 904 F.3d 102, 107 

(1st Cir. 2018) (invoking the canon of noscitur a sociis to discern 

the meaning of a phrase with reference to neighboring words). The 

district court's reasoning reflects the conclusion that no 

reasonable jury could infer from Guerrero-Narváez's conduct that 

he intended to harm Silva-Rivera in the serious way that the 

statute requires.

The other facts on which the government relies do nothing 

to tip the balance of evidence in its favor. The government points 

to Guerrero-Narváez and Cartagena-Suarez's behavior in the hours 

preceding the carjacking as evidence of Guerrero-Narváez's intent 

to use whatever force was necessary to steal the car. The 

government argues that Guerrero-Narváez was highly motivated to 

successfully carry out the carjacking -- i.e., to leave the scene 

in a stolen vehicle -- because the two men had been waiting at the 

gas station for more than an hour, and failure would leave 

Guerrero-Narváez with "no ready means of escape" in the midst of 

individuals who just witnessed an unsuccessful carjacking. But 

there is no evidentiary basis in this case for inferring an intent 
- 28 -

to cause serious bodily harm or death from the defendants' 

loitering at the gas station with the motivation to steal the 

vehicle. The district court described this argument as "nothing 

short of impermissible speculation," noting that "[a] car is not 

a prerequisite to abandoning the scene of a botched 

crime -- criminals often flee on foot." Guerrero-Narvaez, 415 F. 

Supp. 3d at 291. Surely most carjackers are highly motivated to 

steal cars and have reason to wait patiently for the opportune 

moment to do so. Indeed, the government's evidence is equally 

consistent with the theory that Guerrero-Narváez and CartagenaSuarez waited at the gas station for a victim against whom using 

force would be unnecessary. The government's "escape" theory, so 

speculative at its core, does nothing to advance the government's 

claim that a reasonable factfinder could conclude beyond a 

reasonable doubt that Guerrero-Narváez possessed the requisite 

intent. 

The government's final argument -- that appellants chose

Guerrero-Narváez, rather than the smaller Cartagena-Suarez -- to 

carry out the carjacking because he would "likely be more menacing 

to the victim, and thus more likely to succeed," id., actually 

undermines the government's case. "Undoubtedly," as the district 

court observed, "a commanding stature can amplify and lend 

credibility to a threat." Id. But sending a larger individual to 

effect a carjacking says nothing about the larger individual's 
- 29 -

conditional intent to seriously harm or kill the victim of a 

carjacking. Indeed, the district court observed that, "[p]erhaps 

paradoxically, . . . [a] smaller carjacker may be likelier to 

necessitate violence to obtain a victim's compliance." Id. at 291 

n.8. 

III.

To distinguish "intent to cause death or serious bodily 

harm" from a mere empty threat, § 2119 requires evidence of more 

than just intimidation. Even viewing the evidence in its totality, 

see Guzman-Ortiz, 975 F.3d at 54, Guerrero-Narváez's actions in 

this case fall far from the line we have drawn in prior cases. 

See Díaz-Rosado, 857 F.3d at 121-22. The ambiguity of the evidence 

of a weapon and the lack of evidence indicating that GuerreroNarváez used any other type of force to achieve the taking of 

Silva-Rivera's vehicle, in combination with the other, equivocal 

evidence on which the government relies, dooms the government's 

case. "We would have to engage in [] impermissible inference 

stacking here to conclude. . . that there was proof beyond a 

reasonable doubt," Guzman-Ortiz, 975 F.3d at 55 (internal 

quotation marks omitted), that Guerrero-Narváez possessed the 

intent to kill or to cause serious bodily harm to Silva-Rivera, if 

necessary, to effect the taking. Whereas Díaz-Rosado was "close,"

857 F.3d at 121, the facts of this case make it, as the district 

court aptly noted, "a ten-mile long shot" even considering the 
- 30 -

deferential standard owed to jury verdicts. Guerrero-Narvaez, 

415 F. Supp. 3d at 291. At best, viewing the evidence in the light 

most favorable to the government "gives equal or nearly equal 

circumstantial support to theories of guilt and innocence."

Martin, 228 F.3d at 10 (quoting Andújar, 49 F.3d at 20). That is 

not good enough to meet the government's burden to prove its case 

beyond a reasonable doubt.

We emphasize, however, that our decision to affirm the 

decision of the district court does not mean that appellees did 

not commit a serious criminal act. Guerrero-Narváez intimidated

Silva-Rivera into relinquishing her vehicle in particularly 

frightening circumstances, given that her children were in the 

backseat of the car. That crime is certainly worthy of 

prosecution, even if the evidence does not support conviction under 

the federal carjacking statute. See P.R. Laws Ann. tit. 33, § 4827 

(making robbery of a motor vehicle a second-degree felony). As 

the district court observed:

The record before the Court reflects that 

Guerrero-Narváez is a criminal who should reap 

what he has sowed. But, for Guerrero-Narváez 

to be convicted, he must be prosecuted for the 

right crime, and all elements of that crime 

must be proven. As it stands, Guerrero-Narváez 

did not violate § 2119. His conviction 

pursuant to that statute cannot pass muster. 

Guerrero-Narvaez, 415 F. Supp. 3d at 293. We agree.

Affirmed.