United States v. Diaz , 248 F.3d 1065 ( 2001 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Gloria Maria DIAZ, Sergio Echevarria, a.k.a. Papo, a.k.a. Sylvio, et al., Defendants-Appellants.
No. 99-4166.
United States Court of Appeals,
Eleventh Circuit.
April 17, 2001.
Appeals from the United States District Court for the Southern District of Florida. (No. 96-00443-1-CR-10-
ASG), Alan S. Gold, Judge.
Before BARKETT and WILSON, Circuit Judges, and DOWD*, District Judge.
DOWD, District Judge:
I. Introduction
This appeal follows the conviction of the six appellants, Gloria Diaz ("Diaz"), Jose Blas Lopez
("Lopez"), Sergio Echevarria ("Echevarria"), Eladio Munoz ("Munoz"), Orestes Hernandez ("Orestes
Hernandez") and Ismael Camacho ("Camacho") in a single jury trial that focused on three separate terrifying
kidnapping and extortion episodes in the Miami area spread over a seventeen month period. The ensuing
sentences ranged from a low of 188 months for Lopez to a high of 1145 months for Camacho.
The trial was based on the fourth superseding indictment. The eleven counts included the crime of
conspiracy to commit a Hobbs Act violation, a series of substantive Hobbs Act violations, a series of
carjackings in violation of 18 U.S.C. § 2119, and a series of 18 U.S.C. § 924(c) violations (hereinafter §
924(c)).1
*
Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting by
designation.
1
The first indictment (R.15) was filed on April 22, 1996 and named only Ilvigio Hernandez,
Humberto Munoz and John Does. Humberto Munoz was arrested on January 12, 1996 and mistakenly
identified by Idania Arias as one of the kidnappers. After many months in jail, the mistake as to
Humberto Munoz was determined and he was released. A superseding indictment (R.34) was filed on
May 28, 1996 and named Ilvigio Hernandez, Humberto Munoz, Sergio Echevarria and Eladio Munoz.
The second superseding indictment (R.57) was filed on June 18, 1996 and added as a new defendant
Ismael Camacho. The third superseding indictment (R.160) was filed on April 22, 1997 and added
Vlademir Negrin, Carlos Escandell, Jose Blas Lopez, Gloria Diaz and Orestes Hernandez. By the time
the fourth superseding indictment (R.330) was filed on April 1, 1998, Ilvigio Hernandez and Carlos
Escandell had entered pleas of guilty and, thus, were not named in the fourth superseding indictment.
Vlademir Negrin was named in the indictment, but pled guilty before the trial of the six appellants began
in May of 1998.
The pivotal event from a prosecutorial standpoint was the arrest of Ilvigio Hernandez ("Ilvigio") on
January 12, 1996 following the failed attempt by Echevarria, Munoz, Orestes Hernandez and Camacho to
extort money from the family of Jose and Idania Arias by the method of kidnapping. Ilvigio was an active
additional participant in the Arias kidnapping and was to become the primary witness for the government in
its successful prosecution. As the law enforcement effort continued after the Arias kidnapping, the authorities
learned of an earlier, unreported kidnapping of Nelson and Mercedes Martin on June 26, 1995.
The investigation of the Arias kidnapping eventually led to the arrest of Echevarria and Munoz. The
remaining active members of the kidnapping gang—Orestes Hernandez and Camacho—then joined with two
other persons, Vlademir Negrin ("Negrin") and Carlos Escandell ("Escandell"), and engaged in a similar
episode involving Rosa and Armando Gonzalez in November of 1996. After many months, arrestee Ilvigio
broke his silence and became the government's primary witness as to the January 1996 Arias crime. His
cooperation included the disclosure that the remaining two appellants, Diaz and her husband Lopez, had
served as "tipsters" in identifying targets for robbery and extortion plots.
The testimony of Ilvigio, bolstered by the vivid descriptions of the victims Idania Arias, Jose Arias,
Joseph Arias, Nelson Martin, Mercedes Gomez Martin, and Armando Gonzalez, and aided by cellular
telephone records, served to corroborate the identifications and testimony of Ilvigio as to the Arias and Martin
crimes. All six appellants—the alleged "tipsters" Diaz and Lopez and the remaining four, Echevarria, Munoz,
Orestes Hernandez, and Camacho—were tried jointly and convicted of a series of charges, which featured
Hobbs Act violations.2
II. The Kidnapping Episodes
Three separate episodes underlie the charges in this case.3 First was the robbery and extortion of
Nelson and Mercedes Gomez Martin on June 26, 1995. The second episode included the kidnapping and
extortion of Jose and Idania Arias and their children on January 11, 1996. The final episode involved the
November 4, 1996 attempted robbery of Rosa Gonzalez, Armando Gonzalez's housekeeper and the
kidnapping and extortion of Armando Gonzalez on November 13, 1996. The Arias and Gonzalez episodes
2
Ilvigio, Vladmir Negrin, and Carlos Escandell were also indicted in the district court case. All three
entered pleas of guilty and have been sentenced. Ilvigio received a sentence of 122 months, Negrin a
sentence of 390 months, and Escandell a sentence of 71 months. Escandell, like Ilvigio, testified as a
government witness and described his participation along with Negrin, Orestes Hernandez, and Ismael
Camacho in the Gonzalez episode in November of 1996.
3
A detailed description of each incident is provided infra Parts II.A, B & C.
also involved carjacking, and firearms were used in all three episodes.
Although not physically involved in the robberies and extortions, Lopez and Diaz served as
"tipsters."4 They were Santeria priests and used their positions to gain confidential information regarding the
financial status of their followers, called "godchildren."5 This information was then passed on to Orestes
Hernandez who in turn, along with Echevarria, Camacho, Munoz, and Ilvigio, targeted the individuals
beginning in December 1994. Both the Martins and the Ariases were godchildren of Lopez and Diaz.
A. The Nelson and Mercedes Martin Episode
Munoz, Echevarria, Orestes Hernandez, and Camacho kidnapped Nelson Martin on June 26, 1995.
Munoz owned and drove the car used to kidnap Nelson, while Echevarria was one of two or three men who
pulled Martin from his car.
Nelson Martin and his wife Mercedes Gomez Martin owned Rosa Medical Center and Family
Assistance Network. (R.378, at 1005 & 1008). Nelson Martin had gone to the mall to get his hair cut when,
upon returning to his car, he was approached by two or three men who were wearing badges, carrying guns,
and screaming "FBI, FBI." (R.370, at 853-54). Martin was dragged from his car at gunpoint and thrown in
the back of a green Cadillac where duct tape was wrapped around his eyes, mouth, head, hands, and ankles.
(Id.).
When they got Martin in the car, Munoz punched Martin in the face twice and told him that he had
"a lot of fucking problem with [him], that he had been after [him] for a long time." (R.370, at 856-57). The
kidnappers took Martin's watch and money while driving for about half an hour. (R.370, at 868-69).
Although Martin's eyes were taped, his profuse sweating had created a little space from which he could see.
(R.370, at 867). Upon arriving at their destination, the kidnappers carried Martin up a flight of stairs and
4
Neither Lopez nor Diaz was implicated in the Gonzalez episode that took place in November of
1996. Rather, Escandell, a cooperating defendant in the Gonzalez episode, identified an anonymous
mechanic as the "tipster" for those crimes.
5
Santeria is a syncretistic religion of Caribbean origin in that it represents a compromise of conflicting
religious beliefs. Its origins date back to the slave trade when African natives were forcibly transported to
the Caribbean. The religion is currently concentrated in Cuba and other Caribbean islands, and among
Hispanics in Florida, New York City, and Los Angeles. Ritual sacrifices form an integral part of many
Santerian religious rituals. Very little is known about the beliefs, rituals, symbolism, and practices of the
Santerian religion. Like most Aboriginal religions, it is preserved by an oral tradition. There are priests
and priestesses who are trained for many years in the oral tradition of the faith. This is followed by a
period of solitude before being initiated. They learn dance, songs, and healing methods. Their followers
or clients are called "godchildren." See http://www.seanet. com/Cefunmoyiwa/ochanetold.html (last
visited February 20, 2001).
threw him on a bed. (R.370, at 869-70). Martin was unable to walk because his feet were still bound.
(R.370, at 869). A few minutes later, Martin heard a blow torch being ignited and then felt the heat and was
burned on his face, ears, and scalp. (R.370, at 870). The kidnappers continued to beat Martin even while he
was being burned and demanded to know the whereabouts of his money. (R.370, at 871). After about five
minutes, the kidnappers took the tape off his mouth, and Martin lied to them and told them he had money in
his wife's closet at his house so they would stop torturing him. (R.370, at 871-72).
After obtaining Martin's alarm code and keys to his house, three of the kidnappers went to Martin's
house and ransacked it looking for the money. (R.370, at 873). They stole everything from his closet but did
not find any money. Upon their return, Martin was hit for lying. (Id.). While this was going on, Martin's
wife, Mercedes Gomez Martin, and daughter arrived at home. Upon seeing the ransacked house, Mercedes
began to page her husband. (R.378, at 991-92). The kidnappers returned her page sometime later, and they
demanded $75,000 in return for her husband. (R.378, at 993). The kidnappers mentioned that Mercedes had
a clinic, told her they knew about her businesses, and stated that this was their "job." (R.378, at 996). They
threatened Mercedes to keep her from going to the police, saying her daughter would be next if she did, and
it would be worse.
Mercedes worked over the next sixteen hours to come up with $75,000. Martin was moved several
times during this period of time. Mercedes was given a drop-off site the next day, which the kidnappers
moved several times. (R.378, at 996-98). While Mercedes waited in the empty lot to drop off the money as
instructed, a green Cadillac appeared. Echevarria, Camacho, and Martin got out of the back. Mercedes later
identified Echevarria as the person to whom she gave the money. (R.378, at 1020-21). She also identified
Camacho as the person "fiddling with the trunk" of the green Cadillac. (R.378, at 1021-22). The Martins did
not report the kidnapping and extortion to the police for fear of their children's lives. (R.370, at 877). They
did, however, report the stolen car and guns. (R.370, at 878).
During the two years prior to the kidnapping, Mercedes Gomez Martin had been visiting Gloria Diaz.
(R.378, at 1011). This relationship continued up until about a month or a month and a half before the
kidnapping when Mrs. Martin and Diaz had a falling out over the presence of an old girlfriend of Nelson
Martin's at Diaz's home. (R.378, at 1016-17). During their relationship, however, Mrs. Martin advised Diaz
about her multiple businesses, including her health care businesses and health care clinics. Diaz then passed
this information on to Orestes Hernandez and instructed him to rob Mrs. Martin. (R.382, at 1235-39).
B. The Jose and Idania Arias Episode
Idania Arias also was a client/follower of Diaz and Lopez. In October 1995, Idania Arias met Diaz
for the first time. Beginning with their first meeting, at which Diaz was going to read Idania Arias's tarot
cards, Diaz made reference to her financial status and her businesses. (R.392, at 1765-66). As their
relationship progressed, Idania Arias told Diaz about her medical supply business, her billing service, and
the medical center. (R.392, at 1766). In December 1995, Diaz again read Idania Arias's tarot cards and said
that Arias's house needed a "cleansing." (R.392, at 1769). Lopez and Diaz then went to the Arias home,
sacrificed a rooster and a hen, and then spread herbs in the rooms to cleanse them of evil spirits. (R.392, at
1770). During this cleansing, Lopez and Diaz commented on how nice Idania Arias's house was and that she
must be making very good money. (R.382, at 1251-52; R.392, at 1770). Idania Arias was questioned as to
the location of her valuables, to which she responded they were everywhere. (R.382, at 1251-52).
Diaz then passed this information on to Orestes Hernandez who shared the information with Munoz.
(R.378, at 1180-81). On January 11, 1996, Munoz, Echevarria, Orestes Hernandez, and Ilvigio began stalking
the Arias family again. (R.382, at 1248-49). They called Diaz to try and locate Idania Arias. (See GX:216
A-C). After calling Idania Arias's billing service business and going to her clinic, they finally located her
after going to her home where they observed her leaving with her four-year-old son Anthony. (R.382, at
1254-55). They followed her to the library, where she picked up her eight-year-old son Joseph, and then back
to her house. As she pulled into her driveway, Echevarria's white Jaguar pulled up behind her. (R.382, at
1255). Echevarria, Ilvigio, Orestes Hernandez, and Munoz got out and approached her with guns drawn.
(R.388, at 1671). Idania Arias handed them her keys and told them to take what they wanted to which they
responded that they wanted her and her children. Idania Arias and her two children were forced into the white
Jaguar. (R.388, at 1672). Munoz stayed behind in order to steal Idania Arias's black Lexus. (R.382, at
1255).
Idania Arias's eyes, hands, and ankles were duct taped. Duct tape was also placed on the
eight-year-old Joseph. Echevarria, who was driving, took them to International Alignment—a paint and body
shop. (R.382, at 1260-61; R.388, at 1678; R.392, at 1895). When they got there, they drove inside to wait
for Munoz. Idania Arias continually asked why she was being kidnapped, but they did not answer and told
her to quit asking questions. She was told that "El Negro" (Munoz) would tell her why she was there when
he arrived. (R.382, at 1261-62).
The kidnappers asked about Mr. Arias's whereabouts. (R.388, at 1682). According to Idania Arias,
the kidnappers appeared to know everything about her clinic, her billing company, and her medical supply
business. (Id.). After about forty-five minutes, there was another cellular telephone call from Orestes
Hernandez's telephone to Lopez and Diaz's home telephone. (GX:216 A-C). Ilvigio then beeped Camacho.
When Camacho returned the call, he was instructed to come to the shop because they had some kidnapping
victims. (R.382, at 1262).
Cellular telephone records from the time period when the Arias family was in the body shop revealed
the multiple telephone calls and also revealed that the kidnappers tried to reach Mr. Arias at the medical
clinic. (GX:216 A-C). The men forced Idania Arias to call her husband and tell him that she and the children
had been kidnapped, and if he ever wanted to see them alive, he would have to meet the kidnappers at the
clinic with $500,000. (R.388, at 1683-84). Jose Arias was warned not to call the police. (Id.). The
kidnappers intended on also seizing Jose Arias to insure that he did not go to the police. (R.382, at 1268).
On his way to the clinic, however, Jose Arias called the police and never made it to the clinic. (R.402, at
1999).
The kidnappers returned from the clinic empty-handed. Munoz told Idania Arias they wanted
$500,000 ransom. (R.388, at 1688). They explained to her that this was "their job" and that usually they
burn, torture, and shock their victims. (R.388, at 1680, 1688-89). Idania Arias was hit, and the kidnappers
threatened to kill her children if she did not raise the money. Idania Arias then was released to raise the
ransom.
The children were kept at the warehouse over night and then were taken to the Jamaica Inn around
5:00 a.m. the next morning. Ilvigio rented a room at the motel, and he and Munoz took the children there to
wait for the ransom. (R.382, at 1274.1280). Ilvigio kept Idania Arias's beeper so she could maintain contact
with him regarding her progress in raising the $500,000. (R.388, at 1690-91).
Following her release, Idania Arias went to her parents' home where she was met by the Metro Dade
Police. (R.388, at 1698-99). Upon meeting them, she was so terrorized that she did not believe they were
really police officers. (R.388, at 1699). After she accepted that her husband had contacted the police, she
cooperated and went to the police station where an undercover telephone was set up for Idania Arias to phone
the kidnappers. (R.388, at 1699-1701). Idania Arias would page her beeper and Ilvigio would call her back
immediately. The cellular telephone records for January 11 and 12, 1996 reflect multiple calls between
Orestes Hernandez's cellular telephone, Ilvigio's cellular telephone, and the undercover telephone. (R.388,
at 1703-04).
Following the advice of the police, Idania Arias told the kidnappers that she could raise only
$250,000. (Id.). Ilvigio and Munoz agreed to accept this amount, and Idania Arias arranged for a controlled
delivery to the kidnappers of a package purporting to be the ransom money. (R.382, at 1274; R.388, at 1704-
05). The drop-off site was changed a number of times until the kidnappers finally decided on the cemetery,
where Idania Arias was told to drop the money behind a white and red car. (R.388, at 1705-08). Both Ilvigio
and Idania Arias testified that, while driving to the drop off site, Idania demanded to know the location of her
children. (R.382, at 1290; R.388, at 1708-09). Ilvigio informed her that they were in Room 43 at the
Jamaica Inn. (R.382, at 1290).
Ilvigio, Munoz, Echevarria, Orestes Hernandez, and Camacho waited in two separate vehicles parked
across the street from the cemetery. (R.382, at 1288-89). The men saw Arias approach the area as instructed
and drop the purported money behind the white and red car. (R.382, at 1289). However, at that point they
also saw the police converge upon the occupant of the car, Humberto Munoz (no relation to Eladio Munoz).
(Id.). Realizing that Idania Arias had gone to the authorities, the kidnappers left the area.
Later, Munoz drove Ilvigio home where, approximately five minutes after Ilvigio arrived, he was
arrested. (R.382, at 1291). When Ilvigio was arrested, he still had Arias's beeper in his possession as well
as the cellular phone used during the ransom negotiations. (R.402, at 2061-69). After Ilvigio confirmed to
the police that the kids were in the Jamaica Inn, the children were safely recovered. (R.402, at 2066-67).
Following the arrest of Ilvigio, the FBI spent weeks examining telephone records from Ilvigio's
cellular phone. (R.403, at 2284). They discovered that Ilvigio, Echevarria, Orestes Hernandez, Munoz, and
Camacho were communicating constantly with each other during the period of time spanning Idania Arias's
kidnapping. (GX:216 A-C). For each one of the suspects, investigating agents created a photo spread of six
people to show Idania Arias and her oldest son, Joseph. (22:2298). Idania Arias ultimately identified
Echevarria, Munoz, and Camacho. (R.392, at 1747, 1748, 1750-51). Joseph Arias identified Munoz and
Camacho. While Ilvigio was arrested immediately, he was the only kidnapper in custody until late May 1996
when Munoz and Echevarria were arrested. Although he initially denied the charges, Ilvigio later decided
to cooperate with the government.
Idania Arias later told Diaz and Lopez about the kidnapping and extortion. (R.392, at 1771-73).
Diaz's reaction was strange according to Idania Arias. Instead of crying with Arias, like most people who
heard the story, Diaz kept asking if the kidnappers got any money. (R.392, at 1771). Diaz told Arias not to
worry about the incident because many people who came to their home were invaded and kidnapped. (R.402,
at 1945-46). Arias explained that "they," presumably referring to Diaz and Lopez, questioned her about the
arrests and investigation in the case. (R.392, at 1771-74).
Approximately five months after the first kidnapping, on June 15, 1995, a second home invasion of
Jose and Idania Arias took place. (R.392, at 1796). Jose and Idania Arias described an entry of four Latin
males into their home by climbing over a locked gate on the west side of the house. The entire Arias family,
including the children, were in the kitchen having pizza. The masked men armed with guns confronted them.
(R.402, at 2001). They said to Jose that they "finally caught him." (Id.).
The men separated Jose Arias from his wife and sons. (Id.). The men demanded to know where the
safe was located in the residence and threatened to kill the victims if they did not reveal the location. (R.392,
at 1797). The kidnappers stated that the Ariases owned a medical supply company and there must be a safe.
(R.392, at 1798). When the Ariases replied that there was no safe, the men began moving furniture, pictures,
and other articles looking for one. (Id.). Finally, when they could not find money, the men directed Joseph
Arias to go with his father to the bedroom. (R.392, at 1797). As they grabbed Joseph, one man stated, "Give
me the older one because he's the one who's talking and identifying people." (Id.).
Idania and Anthony Arias were held at gunpoint in the Florida room and were told that Jose Arias
was being killed. (R.392, at 1800; R.402, at 2001). Jose and Joseph Arias were in the back bedroom where
one of the men threatened to kill the child. (R.402, at 2004-05). Jose Arias was told that his wife was being
raped by the kidnappers in the Florida room. (R.402, at 2006).
Jose Arias was beaten with the butt of a gun, handcuffed, and tied at his ankles and knees. (R.402,
at 2002). The men tied an electrical cord around Joseph's neck saying that they were going to kill him.
(R.402, at 2004-05). They then took the electrical cord they had tied around Joseph's neck and hung him
from a ceiling fan in the bedroom. Joseph Arias was placed on his father's shoulders underneath the ceiling
fan, in an apparent attempt to get Jose Arias to reveal the location of the safe. (Id.). Jose Arias could not
move because Joseph would fall and hang. (Id.). At one point, the men actually shoved Jose down so that
Joseph hung but did not strangle. While Joseph was standing on his father's shoulders, he overheard one of
the invaders say, "Gloria said not to kill them, just hurt them because then we can get more money out of the
family." (R.402, at 2103).6
At some point during the robbery, Idania managed to flee with Anthony to a neighbor's house where
the police were contacted. (R.392, at 1800-01). The men fled before the police arrived. The circumstantial
evidence suggested that two of the men involved in this home invasion were Camacho and Orestes
Hernandez.7 When Idania told Gloria Diaz about this second home invasion, Gloria again responded, "Did
they steal a lot of money?" (R.392, at 1802).
C. The Gonzalez Episode
The final target was Armando Gonzalez who, along with his wife from whom he was separated,
owned a gas station and a day care in Miami. (R.427, at 2632). Orestes Hernandez apparently received a
"tip" from a "mechanic" who knew Armando Gonzalez and said that he would have a lot of money in a safe
in his house. (R.428, at 2802-05, 2868-69, & 2872). Echevarria and Munoz had been arrested following the
Arias kidnapping; therefore, Orestes Hernandez and Camacho recruited Vlademir Negrin to join their gang.
Orestes Hernandez, Camacho, and Negrin initially targeted Gonzalez on November 4, 1996, but he
was not home—only his housekeeper, Rosa Gonzalez was home.8 (R.427, at 2599-2600). When Rosa
answered the door, Camacho said he had a package for Armando. (R.427, at 2600). Camacho then produced
a handgun, pointed it at Rosa, and ordered her into the living room. (R.427, at 2602). Camacho and Negrin
went inside the house. Negrin also produced a handgun and pointed it at Rosa Gonzalez. Again, duct tape
was used to bind her hands. (Id.).
Camacho questioned Rosa Gonzalez about the location of the safe. (R.427, at 2603). Rosa denied
having any knowledge of a safe, but the men ransacked the house searching for its location. (R.427, at 2603-
04). Unsuccessful in locating a safe, the men fled and instructed Rosa not to call the authorities for ten
minutes. (R.427, at 2604). Rosa Gonzalez was able to identify Camacho in a composite lineup.9 (R.427, at
6
The Court notes that the impact of this statement arguably was lessened by defense counsel's
questioning of Joseph Arias whereby Joseph admitted that he first remembered this statement a few weeks
before trial. (R.402, at 2120-21).
7
Ilvigio and Munoz had already been incarcerated and the kidnappers made multiple references to the
prior kidnapping of Idania and the children and referred to Gloria Diaz within earshot of Joseph Arias.
8
Rosa Gonzalez was of no relation to Armando Gonzalez.
9
Only Camacho and Orestes Hernandez were charged with the November 4th crimes in Counts VII
and VIII of the fourth superseding indictment.
2606-07).
Negrin, Orestes Hernandez, and Camacho then decided to kidnap Armando Gonzalez and recruited
a friend of Vlademir Negrin, Carlos Escandell, to help. (R.428, at 2798-2800). About nine days after the
episode involving Rosa Gonzalez, the four men set out to abduct Armando. They conducted surveillance on
Gonzalez and received information from the "mechanic." (R.428, at 2807-12).
At approximately 6:00 a.m. on November 13, 1996, Armando Gonzalez exited his girlfriend's house
and got in his Dodge Ram truck. (R.427, at 2634; R.428, at 2812). Gonzalez was stopped immediately by
a white Caprice Chevrolet with flashing blue lights, which he believed to be a police car. Behind the "police
car" was a Ford Explorer leased by Orestes Hernandez. (R.427, at 2634-35; R.428, at 2813). Gonzalez
pulled his vehicle over and saw several men dressed as police officers jump out of the white Chevrolet.
(R.427, at 2634-35). The "police officers" were later identified as Escandell, Camacho, Orestes Hernandez,
and Negrin. (R.428, at 2812). The men approached Gonzalez's car with guns drawn and told him he was
under arrest. (R.427, at 2634). Gonzalez was removed from his vehicle, handcuffed, duct-taped, and thrown
into the back seat of the Caprice. (R.427, at 2635). Armando Gonzalez was blindfolded with duct tape so
he could not see. Negrin took Gonzalez's truck, and Orestes Hernandez drove behind in his own vehicle.
(R.428, at 2814). The kidnappers stole Gonzalez's wallet, cash, jewelry (including a gold Star of David), and
watch. (R.428, at 2820-21).
Gonzalez was driven to Camacho's house where his truck was parked inside the garage. (R.428, at
2815-16, & 2818). He was severely beaten, and his pants were lowered so that the men could use a blow
torch on his genitals. (R.428, at 2822). Both his buttocks and thighs were burned. Several times the men
inserted the blow torch in Gonzalez's rectum and lit it. (Id.). The kidnappers also used a stun gun on
Gonzalez's arms. (Id.). They applied the torch to Gonzalez's eyes, actually burning the duct tape that covered
them. (Id.).
The kidnappers demanded the alarm code to the house that Gonzalez was sharing with his girlfriend.
(R.427, at 2639). Gonzalez gave the men the code, and they ransacked the house stealing jewelry, men's
clothing and $30,000 in cash receipts from his gas station. (R.427, at 2639 & 2642). The kidnappers told
Gonzalez many things about his family and his business, including where his girlfriend worked, that one of
his sons drove a black jeep, and where his other son attended school. (R.427, at 2638; R.428, at 2820).
When the men returned, they placed Gonzalez in the back of his Dodge truck and dropped him at an unknown
location. (R.427, at 2642). Gonzalez was left tied in the back seat of his truck and told not to contact the
police because they would be watching his family. (R.427, at 2638 & 2642). Gonzalez did not go to the
police. (R.427, at 2669). Only when Escandell was arrested in connection with another kidnapping attempt
did Gonzalez's kidnapping get reported by Escandell.10
On January 10, 1997, Gonzalez was interviewed and shown a photo lineup by Detective LeFebvre.
(R.427, at 2715-16). Gonzalez positively identified Negrin. (R.427, at 2716-17). Photographs of Orestes
Hernandez and Camacho were not shown to Gonzalez, but Gonzalez did state that the man who did most of
the talking had a stutter, and Orestes Hernandez has a stutter. (R.427, at 2637, 2717 & 2723; R.428, at 2801
& 2898). On January 11, 1997, Negrin was arrested at his home. (R.427, at 2717). He gave consent to have
his apartment searched. (R.427, at 2718). Gonzalez's Star of David medal, as well as a large amount of other
jewelry and walkie talkies, were found in his apartment. (R.427, at 2718-22). A stun gun was found in his
car. (R.427, at 2721).
III. The Counts, Verdicts, and Sentences
The fourth superseding indictment did not list Ilvigio and Escandell as they had already entered guilty
pleas to an earlier indictment. Count I charged all six appellants with engaging in a conspiracy from June
26, 1995 until November 18, 1996 to interfere with commerce by extortion in violation of the Hobbs Act. All
six appellants were convicted on Count I.
Count II charged all appellants, except Lopez, with a substantive Hobbs Act violation in connection
with Nelson Martin. The remaining five appellants were convicted on Count Two.11
Count III charged the four appellants—Echevarria, Munoz, Camacho and Orestes Hernandez—with
a § 924(c) violation in connection with the Nelson Martin abduction. All four were convicted.
Count IV charged all six appellants with a substantive Hobbs Act violation in connection with the
kidnapping and attempted extortion of Idania Arias and her two children. All six appellants were convicted.
Count V charged all six appellants with carjacking as it related to Idania Arias. Diaz and Lopez were
10
On December 18, 1996, Escandell was arrested in connection with a subsequent kidnapping
attempt. (R.428, at 2831). Once arrested, he told the detective about everything in which he had been
involved—including the Armando Gonzalez kidnapping. (Id.).
11
The government dismissed Counts II and III as to Lopez during the Rule 29 process. See R.430, at
3289-90.
acquitted. Appellants Echevarria, Munoz, and Orestes Hernandez were convicted.12
Count VI charged appellants Echevarria, Munoz, Camacho and Orestes Hernandez with a § 924(c)
violation in relation to the Arias abduction and each was convicted.13
Count VII charged appellants Camacho and Orestes Hernandez with a substantive Hobbs Act
violation by engaging in a robbery as it related to the home invasion of the Gonzalez house on November 4,
1996. Both were convicted.
Count VIII charged appellants Camacho and Orestes Hernandez with a § 924(c) violation as it related
to the invasion of the Gonzalez home on November 4, 1996. Camacho was convicted and Orestes Hernandez
was acquitted.
Count IX charged appellants Camacho and Orestes Hernandez with a substantive Hobbs Act violation
as it related to the abduction of Armando Gonzalez on November 13, 1996. Both were convicted.
Count X charged appellants Camacho and Orestes Hernandez with carjacking as it related to the
Dodge Ram driven by Armando Gonzalez. Both were convicted.
Count XI charged appellants Camacho and Orestes Hernandez with a § 924(c) violation as it related
to the abduction and carjacking of Armando Gonzalez. Both were convicted.
Echevarria was sentenced to a total of 465 months, a three-year period of supervised release, and
$146,250 in restitution.14 Munoz was sentenced to a total of 705 months, a three-year period of supervised
release, and $146,250 in restitution.15 Camacho was sentenced to a total of 1145 months, a three-year period
12
The government moved to dismiss as to Camacho; its motion was granted. (R.430, at 3368).
13
Lopez and Diaz were charged in Count VI, but the government dismissed as to both. See R.430, at
3341.
14
Echevarria was sentenced to three concurrent terms of 240 months imprisonment for the Hobbs Act
violations charged in Counts I, II, and IV; a consecutive term of 165 months for the carjacking violation
charged in Count V; and a consecutive term of 60 months imprisonment for the single § 924(c) violation
charged in Count III for a total of 465 months, plus restitution in the sum of $146,250.00.
15
Munoz was sentenced to three concurrent terms of 240 months for the Hobbs Act violations charged
in Counts I, II, and IV; a consecutive term of 165 months for the carjacking violation charged in Count
V; a consecutive term of 60 months for the first § 924(c) violation charged in Count III; and a
consecutive term of 240 months for the second § 924(c) violation charged in Count VI for a total of 705
months, plus restitution in the sum of $146,250.00.
of supervised release, and $192,050 in restitution.16 Orestes Hernandez was sentenced to a total of 665
months, a three-year period of supervised release, and $45,800 in restitution.17 Lopez was sentenced to 188
months, a three-year period of supervised release, and $5,200 in restitution.18 Finally, Diaz was sentenced
to a total of 293 months, a three-year period of supervised release, and $5,200 in restitution.19
Appellants timely appealed their convictions and sentences. In sum, appellants challenge the
following: (1) the application of the Hobbs Act and the sufficiency of the evidence as to their culpability for
the Hobbs Act conspiracy and the four substantive Hobbs Act counts dealing with the kidnappings, extortion,
and robberies as set forth in Counts II, IV, VII, and IX; (2) the sufficiency of the evidence as to the
carjacking counts; (3) the sufficiency of the evidence as to the carrying and use of a firearm counts; (4)
procedural and pretrial issues including denial of a severance, mistrial, in-court and out-of-court
identifications, and enforcement of the district court's sequestration order; and (5) the sentences with respect
to Echevarria, Orestes Hernandez, and Lopez. The Court will address these issues separately, paying careful
attention to distinguish which appellants appeal on which grounds.
IV. Application of the Hobbs Act and Sufficiency of the Evidence as to the Conspiracy and Hobbs Act
Convictions
All six appellants, either by virtue of their own brief or adoption of the briefs of their co-appellants,
16
Camacho was sentenced to a term of 300 months for his single carjacking conviction as charged in
Count X; concurrent terms of 240 months for the Hobbs Act violations as charged in Counts I, II, IV, and
VII, to be served concurrently with the 300 month sentence for Count Ten; a term of 65 months for the
Hobbs Act violation charged in Count IX, to be served consecutively to the sentences imposed for Counts
I, II, IV, VII, and X; a term of 60 months for the first § 924(c) violation as charged in Count III, to be
served consecutively to the other sentences; and, finally, an additional 720 months to be served
consecutively to all other sentences for the second, third, and fourth § 924(c) violations as charged in
Counts VI, VIII, and XI, for a total of 1145 months, plus restitution in the sum of $192,050.00.
17
Orestes Hernandez was sentenced to concurrent terms of 240 months for the Hobbs Act violations
charged in Counts I, II, IV, and VII; a term of 300 months for the carjacking violation charged in Count
X and a term of 180 months for the carjacking violation charged in Count V, with both carjacking
sentences to be served concurrently with the terms for Counts I, II, IV, and VII; a term of 65 months for
the Hobbs Act violation charged in Count IX, to be served consecutively to the sentences for Counts I, II,
IV, and VII; a term of 60 months for the first § 924(c) violation as charged in Count III, to be served
consecutively to the other sentences, and an additional 480 months for the second and third § 924(c)
violations as charged in Counts VI and XI, for a total of 905 months, plus restitution in the sum of
$45,800.00.
18
Lopez was sentenced to 188 months imprisonment for the two Hobbs Act violations as charged in
Counts I and IV, plus restitution in the sum of $5,200.00.
19
Diaz was sentenced to concurrent terms of 293 months for the three Hobbs Act violations as
charged in Counts I, II, and IV, plus restitution in the sum of $5,200.00.
challenge the sufficiency of the evidence as to their culpability for the conspiracy to violate the Hobbs Act
and the four substantive Hobbs Act violations. The Court will address both the conspiracy to violate the
Hobbs Act and the substantive violations as they relate to Echevarria, Munoz, Camacho, Orestes Hernandez,
and Diaz collectively. Both the conspiracy conviction and the substantive Hobbs Act conviction of Jose Blas
Lopez will be addressed separately as the Court finds that his role in the commission of these crimes raises
issues not shared by the other co-appellants.
A. Standard of Review and Law Applicable to all Six Appellants
Whether sufficient evidence was presented at trial to support appellants' convictions is a question
of law subject to de novo review. U.S. v. Keller, 916 F.2d 628, 633 (11th Cir.1990). The Court reviews the
sufficiency of the evidence to determine whether a reasonable jury could have concluded that the evidence
established appellants' guilt beyond a reasonable doubt. The evidence is viewed in the light most favorable
to the government and all reasonable inferences and credibility choices are made in the government's favor.
U.S. v. Lyons, 53 F.3d 1198, 1200 (11th Cir.1995); U.S. v. Johnson, 713 F.2d 654, 661 (11th Cir.1983).
The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies to commit robbery or
extortion, that "in any way or degree obstruct[ ], delay[ ], or affect[ ] commerce or the movement of any
article or commodity in commerce." U.S. v. Kaplan, 171 F.3d 1351, 1354 (11th Cir.) (quoting 18 U.S.C. §
1951(a)), cert. denied, 528 U.S. 928, 120 S.Ct. 323, 145 L.Ed.2d 252 (1999). To prove a Hobbs Act
conspiracy under 18 U.S.C. §§ 1951(a) & (b)(1), the government must prove that: (1) two or more persons
agreed to commit a robbery or extortion encompassed within the Hobbs Act; (2) the defendant knew of the
conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal. U.S.
v. To, 144 F.3d 737, 747-48 (11th Cir.1998); U.S. v. Thomas, 8 F.3d 1552, 1556 (11th Cir.1993). A Hobbs
Act conspiracy was established in U.S. v. Farrell, 877 F.2d 870 (11th Cir.1989), by proof of a potential
impact on interstate commerce in an extortion-kidnapping plot. The Farrell court, in discussing the interstate
commerce nexus, opined:
The Hobbs Act applies to extortion wherein the perpetrator "... in any way or degree
obstructs, delays or affects commerce or the movement of any article or commodity of commerce...."
Only a de minimis nexus with interstate commerce is required. Where attempted extortion or
conspiracy to extort are charged, the interstate nexus may be demonstrated by evidence of potential
impact on interstate commerce, or by evidence of actual, de minimis impact[.] Potential impact is
measured at the time of the attempt, i.e., when the extortion demand is made, based on the assumed
success of the intended scheme. A sufficient potential impact exists when there is evidence of "a plan
to embark upon a course of extortionate behavior likely to have the natural effect of obstructing
commerce."
Farrell, 877 F.2d at 875 (internal citations omitted) (emphases added).
Unlike a conspiracy charged under the Hobbs Act, which only requires proof that defendants' scheme
would have affected interstate commerce, a substantive Hobbs Act violation requires an actual effect on
interstate commerce. See Kaplan, 171 F.3d at 1354. However, the requisite effect on interstate commerce
need not be substantial—all that is required is minimal impact. See id. Moreover, the effect on interstate
commerce is not limited to only adverse effects. See id. at 1357.
While the Hobbs Act usually is applied to robberies of businesses, criminal acts directed toward
individuals also may violate the Hobbs Act. Robberies or extortions perpetrated upon individuals are
prosecutable under the Hobbs Act when any one of the following three conditions are met: (1) the crime
depletes the assets of an individual who is directly engaged in interstate commerce; (2) the crime causes the
individual to deplete the assets of an entity engaged in interstate commerce; or (3) the number of individuals
victimized or the sums involved are so large that there will be a cumulative impact on interstate commerce.
See, e.g., U.S. v. Stephens, 964 F.2d 424 (5th Cir.1992); U.S. v. DeParias, 805 F.2d 1447 (11th Cir.1986),
overruled on other grounds, U.S. v. Kaplan, 171 F.3d 1351 (11th Cir.), cert. denied, 528 U.S. 928, 120 S.Ct.
323, 145 L.Ed.2d 252 (1999); U.S. v. Farrell, 877 F.2d 870 (11th Cir.1989); U.S. v. Collins, 40 F.3d 95 (5th
Cir.1994).
B. Conspiracy to Violate the Hobbs Act Involving Camacho, Orestes Hernandez, Munoz, Echevarria,
and Diaz
Both Diaz and Camacho appeal their convictions of conspiracy to commit Hobbs Act extortions from
June 26, 1995 to November 13, 1996; Echevarria, Orestes Hernandez, and Munoz adopt their arguments
pursuant to F.R.App. P. 28(i). Specifically, appellants argue there was insufficient evidence for a reasonable
jury to find beyond a reasonable doubt that the appellants had any knowledge of the goal of the conspiracy
or that they voluntarily joined the conspiracy. (See Camacho Br., at pp. 17-23; Diaz Br., at pp. 9-12). The
Court disagrees.
The record lacks any evidence supporting a finding that these two elements were not met. The goal
of the conspiracy was to extort money from individuals identified as targets through various tips. The
evidence reveals that Echevarria, Camacho, Munoz, and Orestes Hernandez invested a substantial amount
of time in targeting each individual victim beginning with the initial tips provided by Diaz. Diaz relayed the
tips to Orestes Hernandez who, in turn, shared the information with Echevarria, Camacho, and Munoz. In
addition, there is no evidence that appellants did not participate voluntarily. There is no evidence that any
appellant was forced to participate. Further, at no time did any appellant indicate a desire to disengage from
the conspiracy.
Although mere presence is insufficient to prove membership in a conspiracy, the Court disagrees
with appellants' argument that they were merely present at various times throughout the course of the
conspiracy. Appellants cite U.S. v. Thomas, 8 F.3d 1552 (11th Cir.1993), as support for their argument that
mere presence or knowledge does not support the conclusion that they voluntarily participated in the
agreement or the accomplishments of its goals. See id. at 1558.
The conspiracy in Thomas involved an alleged scheme to rob a bank and to dynamite the sheriff's
office in Danielsville, Georgia. Johnny and Lisa Reese were convicted of conspiracy under the Hobbs Act.
On appeal, they argued there was insufficient evidence to support their convictions. The evidence against
Johnny Reese amounted to the following: Johnny Reese was in the car on March 5, 1991 when it broke down
near the bank; he stood in front of the hardware store while two others entered the bank; when everyone
came out of the bank, they all walked to a restaurant; Johnny Reese was present while another person
disclosed the plan; and, according to one of the members of the conspiracy, he was never identified as a
participant in the conspiracy during any of the conversations among the conspirators. The evidence against
Lisa Reese revealed the following: Lisa Reese was in the car on March 5, 1991 when it broke down; she
went into the bank and requested information about opening an account, asked if the bank had a public
restroom, and picked up some bank brochures; and, one member of the conspiracy testified that "the girls"
made sketches of the bank and that this statement referenced Lisa Reese and another woman. In taped
conversations, Lisa Reese's statements reflected her distaste for the planned bank robbery. Lisa Reese
testified at trial that she did not take the plans to rob the bank seriously, and she denied making any sketches.
Thomas, 8 F.3d at 1556-60.
Unlike the evidence in Thomas, the evidence regarding participation in the case before the Court is
substantial. Ilvigio's testimony is rife with information regarding each appellant's role in the various
kidnappings and attempted kidnappings. Ilvigio first became a part of the conspiracy through a
coworker—Munoz. During a trip in December 1995 for the trucking company they worked for, Munoz and
Ilvigio discussed both the kidnappings and robberies Munoz had done in the past and future "jobs." (R.378,
at 1187-88). It was during this trip that Ilvigio agreed to join the conspiracy. Upon arrival back in Miami,
he and Munoz planned to contact Munoz's friends in order to do a "job" together. (R.378, at 1196). Munoz's
friends were Echevarria (a.k.a.Tatico) and Camacho (a.k.a.Pepe). On December 24, 1995, after arriving in
Miami on the 23rd, Munoz picked up Ilvigio to meet with Camacho. (R.378, at 1197). Camacho, Munoz,
and Ilvigio went to Echevarria's home where they discussed the robberies and kidnappings. They then met
up with Orestes Hernandez (a.k.a. Orestico or El Gago). (R.382, at 1223).
Ilvigio's involvement began with the attempted robberies and kidnappings of four individuals. They
targeted individuals by the name of Tony, Alex, Orestes, and an unnamed woman. These incidents occurred
toward the end of 1995 and the beginning of 1996. Two of these individuals—Tony and Orestes—previously
had been robbed by Munoz, Orestes Hernandez, Echevarria, and Camacho.20 (R.382, at 1230-31). It was
during this same period of time that Mercedes Gomez Martin was targeted for the second time.
The evidence presented at trial revealed that Diaz provided tips to Orestes Hernandez regarding both
the Martins and the Ariases. (R.378, at 1180-81; R.382, at 1235-36, 1239-40). In return, Diaz received a
good sum of money. (R.382, at 1239). In addition, on January 11, 1996 when Mercedes Gomez Martin was
targeted, Orestes Hernandez, Echevarria, Munoz, and Ilvigio went to see Diaz at her house to get addresses
for Mrs. Martin. (R.382, at 1244). Finally, Ilvigio was able to identify Diaz in court. (R.382, at 1247).
Although Ilvigio did not participate in the original robbery and extortion of the Martins, he was an
active member of the conspiracy along with Orestes Hernandez, Munoz, Echevarria, and Camacho, when
Mercedes Gomez Martin was targeted the second time on January 11, 1996. They used Camacho's car and,
while in the car, Camacho discussed mistakes made during the prior kidnapping of Nelson Martin back in
June of 1995. (R.382, at 1237).
Diaz argues on appeal that there was no evidence supporting the jury's finding that she voluntarily
participated in the conspiracy because the only evidence against her came from Ilvigio's testimony, which
appellants claim constituted double hearsay. The Court disagrees. Ilvigio's testimony regarding the four
unsuccessful surveillances, the second attempt involving Mercedes Gomez Martin, and the statements made
by individual members of the conspiracy was not hearsay. Pursuant to Fed.R.Evid. 801(d)(2)(E), statements
of coconspirators of a party made during the course and in furtherance of the conspiracy are, by definition,
20
In Echevarria's factual analysis of matters at issue, he discusses the government's use of evidence of
the uncharged misconduct through Ilvigio's testimony. Echevarria argues that this evidence constituted
extrinsic evidence, and its use was impermissible. Relying on U.S. v. Martin, 794 F.2d 1531 (11th
Cir.1986), the court determined that the evidence was intrinsic—not extrinsic. Accordingly, the court
stated that no limiting instruction was necessary. See R.382, at 1212-16; R.388, at 1666. Assuming,
arguendo, that the evidence was extrinsic and no limiting instruction was given, such error was harmless
in light of the overwhelming evidence against Echevarria.
not hearsay.21 The district court determined that a conspiracy existed and that these statements were made
in furtherance of that conspiracy.22 (R.428, at 3369). Accordingly, Ilvigio was not precluded from testifying
about what a coconspirator told him regarding a conversation with another coconspirator. See U.S. v. Sharpe,
193 F.3d 852, 869 (5th Cir.1999) (citing U.S. v. Gironda, 758 F.2d 1201, 1216-19 (7th Cir.1985)).
In sum, contrary to appellants' arguments, a reasonable jury could find beyond a reasonable doubt
that the appellants knew of the conspiratorial goal and that they participated voluntarily. Accordingly,
appellants' convictions for conspiracy to commit Hobbs Act extortions are affirmed.
C. Substantive Violations of the Hobbs Act Involving Camacho, Orestes Hernandez, Munoz, Echevarria,
and Diaz
Appellants argue that the government failed to adduce sufficient evidence to show that the
kidnappings, extortions, and robberies affected interstate commerce, and, as a result, their Hobbs Act
convictions must be reversed.23 The main argument advanced by appellants is that the robberies were of three
individuals—not businesses. Accordingly, they argue that the requisite effect upon interstate commerce was
not demonstrated. Whether or not the extortions and robberies affected interstate commerce requires an
individual analysis of the three episodes.
1. The Martin Episode
To find a substantive Hobbs Act violation with regard to the kidnapping and extortion of Nelson and
Mercedes Gomez Martin, the Court must find that an extortion occurred and that there was an effect on
21
Fed.R.Evid. 801(d)(2)(E) provides:
A statement is not hearsay if ... [t]he statement is offered against a party and is ... a
statement by a coconspirator of a party during the course and in furtherance of the
conspiracy. The contents of the statement shall be considered but are not alone sufficient
to establish ... the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered under subdivision (E).
22
The court must be satisfied that there was a conspiracy involving the declarant and the nonoffering
party and that the statement was made in furtherance of the conspiracy. The Supreme Court in Bourjaily
v. U.S., 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), made three relevant holdings: (1) when
the preliminary facts relevant to Rule 801(d)(2)(E) are in dispute, the offering party must prove them by a
preponderance of the evidence; (2) when making this preliminary factual determination under Rule
801(d)(2)(E), the court may examine the hearsay statements sought to be admitted; and, (3) the
Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of
statements that satisfy the requirements of Rule 801(d)(2)(E). Id. at 176, 181, & 183, 107 S.Ct. 2775.
23
A finding that the requisite nexus to interstate commerce was lacking would require a reversal of the
conviction for Hobbs Act conspiracy. However, because the substantive charges cover the same episodes
as the conspiracy charge, a separate discussion of the interstate nexus for the conspiracy charge is not
warranted.
interstate commerce. Appellants do not dispute that an extortion occurred. Rather, they argue that the
extortion of the Martins had no effect on interstate commerce. The Court disagrees.
At the time of the extortion, the Martins owned Rosa Medical Center (R.378, at 1005). The Martins
were licensed to run the center, which was a corporation designed to address the general medicine needs of
its patients. Rosa Medical Center had physicians on staff who cared for private patients. Following service
of treatment, the Martins would bill private insurance companies located out-of-state for payment.24 The
insurance companies would pay the Martins who, in turn, would pay the physicians.
According to Mrs. Martin, the physicians of Rosa Medical Center had on hand various equipment
to treat their patients. Specifically, Rosa Medical Center had equipment for electrocardiograms, ultrasound,
and physical therapy. (R.378, at 1006). Mrs. Martin testified that she purchased all of the equipment and that
some of the equipment was purchased from outside the state of Florida. (R.378, at 1007). As a result of the
extortion, the Martins were forced to close the clinic for several days. (R.378, at 1112-13). As a result, seven
to ten patients could not be seen, which was unusual. (R.378, at 1114). In addition, billings decreased and
less work was accomplished. (R.378, at 1117).
Although the Martins were not directly engaged in interstate commerce, Mr. Martin was the president
and Mrs. Martin was the administrator of a corporation, Rosa Medical Center, which was directly engaged
in interstate commerce. Moreover, the extortion of the Martins resulted in an actual effect on interstate
commerce in that the center was shut down for several days, during which time no patients were seen,
resulting in no billing to or payment from the out-of-state insurance companies. The inability to see patients,
which would generate income for Rosa Medical Center, establishes that the extortion of the Martins
(individuals) caused them to deplete the assets of an entity engaged in interstate commerce.25 Although Rosa
Medical Center was only closed for several days, the Court concludes that such closing is sufficient to satisfy
the jurisdictional requirement for a Hobbs Act violation given that the effect on interstate commerce need
only be minimal so long as it is actual.
The Court cautions that its decision should not be interpreted to mean that any extortion of an
24
These companies included, inter alia, Aetna, Ladd Corp., and Unisys.
25
The Court notes that, in reaching this conclusion, it is guided by the definition of "deplete" in
Webster's Third International Dictionary, which defines the term as follows: "to empty (as the blood
vessels) of a principle substance ... to lessen in number, quantity, significant content, or force in vital
power or value as a result of such lessening ...." Webster's Third Int'l Dict. 605 (1981).
individual who is an officer of a corporation that results in the closing of the corporation will be sufficient
to establish a substantive Hobbs Act violation. Even proof that the corporation was directly engaged in
interstate commerce, like Rosa Medical Center, is not enough on its own. What sets this case apart is the fact
that the role of the Martins with regard to their business, which was directly engaged in interstate commerce,
was not coincidental. Rather, the Court is convinced by the evidence presented at trial that appellants targeted
the Martins because of their interest in Rosa Medical Center.
In reaching this conclusion, the Court notes that this case is distinguishable from U.S. v. Collins, 40
F.3d 95 (5th Cir.1994), which, although not controlling, is relied upon by appellants for the proposition that
the extortion of the Martins amounted to the extortion of individuals with only a speculative, indirect nexus
to interstate commerce. The defendant in Collins robbed an individual at gunpoint in the victim's home.
Items taken by the defendant included cash, jewelry, clothes, and a Mercedes-Benz with its cellular phone.
The defendant was convicted of a substantive Hobbs Act violation in connection with this robbery and
appealed arguing that the evidence was insufficient to support a finding that the robbery obstructed interstate
commerce. U.S. v. Collins, 40 F.3d 95, 98 (5th Cir.1994).
The government in Collins argued that the victim, an employee of a national computer company, was
prevented from attending a business meeting and from making business calls on his cellular phone as a result
of the robbery.26 On appeal, the court found no actual direct affect on a business caused by the robbery of
the individual employee. The victim's linkage to his business, which was directly engaged in interstate
commerce, was much too indirect to present a sufficient nexus to interstate commerce to justify federal
jurisdiction. Id. at 100.
Whereas the robbery of the individual in Collins caused only a speculative, indirect effect on a
business engaged in interstate commerce, the extortion of the Martins caused an actual, direct effect on a
business engaged in interstate commerce. This, coupled with the fact that appellants directly targeted the
Martin because of their business, establishes the requisite nexus to interstate commerce. Accordingly, the
Court finds there was sufficient evidence for a reasonable jury to conclude that the evidence established
appellants' guilt beyond a reasonable doubt.
2. The Arias Episode
26
Alternatively, the government contended that because the stolen vehicle had traveled in interstate
commerce, its theft somehow affected it. However this argument was never seriously addressed.
The substantive Hobbs Act violation with regard to the Ariases occurred as a result of appellants'
attempted extortion of $250,000. The fact that no money actually changed hands is immaterial because the
Hobbs Act also proscribes an attempt to interfere or affect commerce by extortion. See 18 U.S.C. § 1951(a).
Accordingly, to prove a Hobbs Act violation with regard to the Ariases, the Court must find that the attempted
extortion would have depleted the assets of the Ariases, assuming they are directly engaged in interstate
commerce, or caused the Ariases to divert assets that would otherwise be expended in interstate commerce.
At the time of the kidnapping and attempted extortion, the Ariases owned three businesses—Arias
Medical Equipment, J&A Electronic Billing Services, and First Option Medical Center. Arias Medical
Equipment was a provider of medical services to people who were sick at home. It sold and rented medical
supplies including, inter alia, walkers, canes, bathing devices, bandages, and hospital beds—some of which
were purchased from out-of-state or out-of-country. J&A Electronic Billing Services provided electronic
billing for clinics and doctors. Equipment used in this business included computers, printers, and telephones.
All of the computers and printers were manufactured out-of-country. Finally, First Option Medical Center
was a clinic that utilized medical equipment, some of which, was made out-of-country. The clinic received
payments both from private national insurance companies located outside of Florida and from Medicare and
Medicaid.
Compared to the Martins' businesses, the nexus between the Ariases' businesses and interstate
commerce is much more substantial. A significant amount of equipment used in the billing services business
and the medical supplies business was purchased or manufactured outside of Florida. In addition, the clinic
received payments from private insurance companies and the federal government that originated outside the
state of Florida. Given this strong connection to interstate commerce, the Court finds that the Ariases were
directly engaged in interstate commerce. As a result, to uphold the Hobbs Act convictions, the Court must
find that the attempted extortion would have depleted the Ariases' assets.
Appellants argue that there was no testimony that payment of $250,000 would deplete the assets of
the Ariases. This argument relies on a definition of "deplete" that is limited to "eliminate." The Court's
interpretation of "deplete," however, is not so narrow. According to Webster's Third New International
Dictionary, the definition of "deplete" encompasses appellants' definition of "to eliminate or exhaust," but
also includes "to lessen in number, quantity, content, or force or in vital power or value as a result of such
lessening." Webster's Third New International Dictionary 605 (1981). Based on this definition of deplete,
a payment of $250,000 would serve to deplete or lessen in number the Ariases' assets. Accordingly, the Court
finds there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that
appellants violated the Hobbs Act in attempting to extort $250,000 from the Ariases.
3. The Gonzalez Episode
Camacho and Orestes Hernandez were convicted on Count VII for Hobbs Act attempted robbery of
Rosa Gonzalez on November 4, 1996 and on Count IX for extortion of Armando Gonzalez on November 13,
1996.27 The crime that occurred on November 4, 1996 was attempted robbery because no money was
received. Camacho and Orestes Hernandez argue on appeal that there was no Hobbs Act attempted robbery
of Rosa Gonzalez because there was no evidence that interstate commerce was potentially affected and
appellants never demanded money. With regard to the extortion of Armando Gonzalez, they argue that there
was no effect on interstate commerce.
The evidence produced at trial indicated that Camacho and Negrin made their way into the Gonzalez
house armed with guns. Although they did not demand money, they did question Rosa Gonzalez about the
location of the safe. (R.427, at 2603). After she denied any knowledge of a safe, Camacho and Negrin
ransacked the house searching for one. (R.427, at 2603-04). It follows logically that they were searching for
the safe to get to the money. Regardless, the Hobbs Act applies to extortion of property in general; therefore,
it is immaterial that no money was demanded because the safe constitutes property. Accordingly, Camacho's
and Orestes Hernandez's convictions will be upheld so long as there was a potential effect on interstate
commerce.
The money appellants were after was not the money of Rosa Gonzalez. Rather, appellants sought
the location of Armando Gonzalez's safe. Determining whether there was an effect on interstate commerce
requires an examination of Armando Gonzalez and his businesses and their nexus, if any, to interstate
commerce. This analysis also applies to determine whether the extortion of Armando Gonzalez on November
13, 1996 constituted a Hobbs Act violation. Accordingly, the Court will examine the remaining two counts
together.
The evidence at trial revealed that Armando Gonzalez was part owner of West Star Oil—a gas station
with a convenience store. Both the gasoline used at the station and the grocery items sold at the convenience
27
Although Negrin was indicted on Counts VII and IX, he pled guilty before the trial for appellants
began.
store were shipped from out-of-state. (R.427, at 2644-45). In addition, Gonzalez and his wife owned Dolphin
Day Care, which purchased many of its supplies from out-of-state (R.427, at 2647). Appellants originally
demanded $250,000 from Gonzalez. However, after raiding his girlfriend's house, they recovered only
$30,000 in receipts from West Star Oil.
Like the Ariases, Gonzalez's business made regular and systematic purchases from out-of-state
thereby establishing a greater connection to interstate commerce. The Court finds that a reasonable jury could
conclude that, as part owner of West Star Oil, Gonzalez was directly engaged in interstate commerce through
his business. The fact that Gonzalez was not sole owner is immaterial. Accordingly, to find a Hobbs Act
violation, the Court must conclude that the attempted robbery on November 4, 1996 would have depleted,
and that the extortion on November 13, 1996 did deplete, Armando Gonzalez's assets. The broad definition
of "deplete" discussed previously with regard to the Ariases, again, supports this finding.
Based on appellants' original demand after kidnapping Gonzalez, they were seeking $250,000 in
ransom. It is unquestionable that this amount would lessen in quantity or number Gonzalez's assets.
Moreover, because there was no testimony that appellants were seeking a different amount when they first
ransacked Armando Gonzalez's house on November 4, 1996, the jury could infer that this was the amount
appellants were searching for as they ransacked the house looking for the safe.
Although appellants originally demanded $250,000 for Gonzalez's release, they ultimately settled on
$30,000 in garage receipts, which they stole from Gonzalez's girlfriend's house. This provides an additional
effect on interstate commerce. Even if there was insufficient evidence for a jury to conclude that Gonzalez
was directly involved in interstate commerce, the extortion of $30,000 in garage receipts constitutes a
diversion of assets of a business engaged in interstate commerce.
Finally, Camacho and Orestes Hernandez appeal on individual grounds. First, Camacho challenges
his Hobbs Act conviction for attempted robbery on November 4, 1996 based on the lack of an identification
at trial. Although Rosa Gonzalez was able to identify Camacho in a composite lineup, she was unable to
identify him at trial. This failure, however, does not result in insufficient evidence because it does not negate
the remaining evidence against him. The failed attempt to identify Camacho was made in the jury's presence,
and the jury was able to consider this when determining Camacho's guilt or innocence. Regardless, the
government's case did not rely solely on the identification of Camacho by Rosa Gonzalez. At trial, Escandell
testified about the attempted extortion involving Rosa Gonzalez because Camacho, Negrin, and Orestes
Hernandez carried on conversations regarding the failure of the extortion in the presence of Escandell after
he had joined the conspiracy. (R.428, at 2804-06).
Second, Orestes Hernandez argues that the government failed to prove that he participated in the
extortion of Armando Gonzalez. The Court disagrees. Based on the testimony of Escandell and Armando
Gonzalez, a reasonable jury could find beyond a reasonable doubt that Orestes Hernandez participated in the
kidnapping and extortion of Armando Gonzalez on November 13, 1996. (R.427, at 2634-49; R.428, at 2813-
28).
In conclusion, based on the foregoing, the Court finds, after a de novo review of the record, that there
was sufficient evidence to convict appellants of the four substantive Hobbs Act extortion violations. The
required nexus to interstate commerce only needs to be minimal and, in all four instances, the extortion or
attempted extortion affected interstate commerce either by depleting assets of an individual directly engaged
in interstate commerce or by diverting assets that would otherwise be expended in interstate commerce.
Accordingly, the convictions of Echevarria, Munoz, Camacho, Orestes Hernandez, and Diaz for
Hobbs Act robbery and extortion of the Martins on June 25, 1995, and of the Ariases from January 11, 1996
to January 12, 1996, are upheld. The convictions of Camacho and Orestes Hernandez for Hobbs Act
attempted robbery of Rosa Gonzalez on November 4, 1996, and Hobbs Act extortion of Armando Gonzalez
on November 13, 1996, also are upheld.
D. The Sufficiency of the Evidence as to the Lopez Convictions for Conspiracy and the Hobbs Act
Conviction as to the Arias Kidnapping
Lopez's counsel moved for acquittal based on Fed.R.Crim.P. 29 as to Counts I, IV, and V.28 The
district court demonstrated a concern as to the proper ruling on the motion29 as it is apparent from a review
of the record that the prosecution's case against Lopez was less compelling than its case against the other five
appellants. The district court reserved its ruling and asked for briefs. The government filed its brief on May
18, 1996 shortly before oral argument, and the district court denied Lopez's Rule 29 motion without any
28
Fed.R.Crim.P. 29 provides the procedure for motions of acquittal whereby "the court shall order the
entry of judgment of acquittal of one or more offenses charged in the indictment or information after the
evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or
offenses."
29
See R.430, at 3368; R.432, at 3642.
explanation.30 Lopez was found guilty of Counts I and IV and not guilty of Count V.31
Ilvigio provided the most damaging testimony against Lopez, although his association with the
conspiracy was short lived as he was arrested on January 12, 1996 following the bungled Arias kidnapping.
Ilvigio's knowledge of Lopez stems from his involvement in the conspiracy beginning in December of 1995.
Upon return from his and Munoz's trucking trip, Munoz introduced Ilvigio to Camacho, Echevarria and
Orestes Hernandez.32 During the process of meeting Orestes Hernandez, Ilvigio was introduced to his
godfather, Jose Blas Lopez, on December 24, 1995.33 Ilvigio and the other active members of the gang began
to engage in surveillance of potential targets for kidnapping and robbery on December 26, 1995. The first
four targets identified as Alex, Tony, a woman on Mango Hill, and a person named Orestes were the subjects
of unsuccessful surveillance.34 Ilvigio testified that the "tipster" as to each of these targets was Lopez but that
the information came through Orestes Hernandez who would on several occasions place a call to Lopez to
confirm locations of the targets.35
The government contends that Ilvigio's testimony was sufficient to connect Lopez to the conspiracy
as charged in Count I. The government's case in support of Lopez's conviction on Count IV charging the
Hobbs Act violation as to the Arias family relies primarily on Pinkerton liability. See Pinkerton v. U.S., 328
U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).36
30
See R.457, at 3693.
31
Lopez was named in the fourth superseding indictment as to Count II (the substantive Hobbs Act
count as to the June 26, 1995 Martin episode) and in Count III (the § 924(c) gun count of June 26, 1995).
The government moved to dismiss those counts at the end of its case in chief. See supra note 11.
32
See R.382, at 1193-1222.
33
As a part of that testimony, Ilvigio identified Lopez in open court. See R.382, at 1224.
34
See R.382, at 1226-34.
35
See R.382, at 1227 (ln.18)-1228 (ln.1), 1230 (ln.10-13), & 1232 (ln.23)-1233 (ln.16).
36
Counts I and IV charged as follows:
From on or about June 26, 1995, to on or about November 13, 1996 ... the defendants ...
did knowingly and unlawfully combine, conspire, confederate and agree with each other
and with persons known and unknown to the Grand Jury, to obstruct, delay and affect
commerce and the movement of articles and commodities in commerce by extortion, as
the terms "commerce" and "extortion" are defined in Title 18, United States Code,
Section 1951(b), in that the defendants did attempt to obtain property ... from individuals
engaged in purchasing and selling articles and commodities in interstate commerce, with
We begin our analysis of the sufficiency of the evidence issue mindful of the instruction of Jackson
v. Virginia, 443 U.S. 307, 322-25, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) that the evidence will be deemed
sufficient to sustain a conviction unless we find that no rational trier of fact could have found proof of guilt
beyond a reasonable doubt and further mindful of the admonition that "[m]ere knowledge of a conspiracy in
association with the conspirators is insufficient evidence to support a conspiracy conviction[ ]" as enunciated
in U.S. v. Russo, 717 F.2d 545, 549 (11th Cir.), reh'g denied, 720 F.2d 1294 (11th Cir.1983). The analysis
also involves the provisions of Fed.R.Evid. 801(d)(2)(E) dealing with admissibility of coconspirator
statements, as well as the teachings of U.S. v. Iacovetti, 466 F.2d 1147, 1153 (5th Cir.1972), indicating that
the uncorroborated testimony of an accomplice is sufficient to support a conviction if it is not, on its face,
incredible or otherwise insubstantial.37
The district court found, and we agree, that the declarations of Orestes Hernandez concerning the
identification of possible targets for kidnapping and extortion purposes, as set forth in Ilvigio's testimony,
were made during and in furtherance of the conspiracy.38 Thus, the declarations did not constitute hearsay.39
U.S. v. To, 144 F.3d 737, 747-48 (11th Cir.1998) sets forth the three elements required to prove a Hobbs Act
conspiracy. The first critical element is that two or more persons agreed to commit a robbery "encompassed
their consent, induced by wrongful use of actual and threatened force, violence and fear;
in violation of Title 18, United States Code, Section 1951.
R.330 (Count I) (emphasis added).
On or about January 11, 1996, to on or about January 12, 1996 ... the defendants ... did
knowingly and unlawfully attempt to obstruct and affect commerce and the movement of
articles and commodities in commerce by extortion, as the terms "commerce" and
"extortion" are defined in Title 18, United States Code, Section 1951(b), in that the
defendant did attempt to obtain property ... from Jose Arias and Idania Arias, owners of
companies engaged in purchasing and selling articles and commodities in interstate
commerce, with their consent, induced by wrongful use of actual and threatened force,
violence and fear, in that the defendants kidnapped and threatened to kill Idania Arias and
the children of Jose Arias and Idania Arias in order to obtain $500,000.00 ... which the
defendants demanded as ransom ....
Id. (Count IV).
37
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), the Eleventh Circuit adopted as
binding precedent the decisions of the former Fifth Circuit rendered before October 1, 1981.
38
See R.430, at 3369.
39
However, such judicial declaration does not constitute a substitute for proof of the required
interstate commerce nexus.
within the Hobbs Act." Id. at 748 (emphasis added). As indicated, Ilvigio described the four surveillances
of targets suggested by Lopez and conducted by Orestes Hernandez, Camacho, Munoz, Echevarria and Ilvigio
during the short span of time between late December of 1995 and early January of 1996. However, no
evidence was introduced by the prosecution that would enable a rational juror to conclude that a successful
surveillance of any of the four targets would have resulted in an extortion, or a robbery, or a kidnapping
"encompassed within the Hobbs Act."
The first target "Alex" was described as owning a Santeria botanica with 100 kilos of cocaine.
(R.382, at 1226-27). The second target "Tony" was described as owning a clinic. (R.382, at 1229). The third
target "Orestes" was described as owning a bar in Hialeah and as having drugs; this person had been robbed
before of four kilos of cocaine. (R.382, at 1230-31). The fourth target, the unnamed woman who lived in
the Mango Hill section of Hialeah, was described as owning a medical clinic. (R.382, at 1232).
Even assuming that Lopez was the source of the information regarding the four targets, Ilvigio's
testimony that the targets operated a bar or owned a clinic, is insufficient to establish the nexus to interstate
commerce. Ilvigio provides no testimony to support a finding that a successful extortion or robbery of the
four targets would have involved the necessary nexus with interstate commerce to establish a conspiracy
within the requirements of the Hobbs Act. See Farrell, 877 F.2d at 875.
The remaining evidence upon which the government relies to establish proof of Lopez's involvement
with the conspiracy as alleged in Count I is, at best, ambiguous or speculative regarding any involvement of
Lopez in the charged conspiracy. The visits of Lopez to the residence of the Arias family do not establish
involvement in the conspiracy. The telephone calls to the Diaz/Lopez residence on the day of the Idania Arias
kidnapping are not directly connected to Lopez. The fact that Lopez is married to Diaz does not establish
criminal culpability. The fact that Lopez, along with Diaz, was involved in the Santeria religion and was a
godparent in the practice of that religion to Orestes Hernandez or victims of the kidnapping does not establish
guilt. The remaining issue is whether a combination of the above factors, including the evidence that Lopez
directed the active gang members to targets lacking a nexus to interstate commerce, is sufficient to justify a
Hobbs Act conspiracy violation. It is our conclusion, applying the de novo review function, that the evidence,
when combined, fails to support the Lopez conviction for Count I.40
40
Since the uncorroborated testimony of Ilvigio does not establish the necessary nexus to interstate
commerce, the Lopez appellate attack on the testimony of Ilvigio as being incredible or otherwise
insubstantial, (see Iacovetti, supra ), need not be addressed. However, we note that Lopez, in his own
The predicate for the conviction of Lopez as to Count IV charging him with a substantive Hobbs Act
violation is application of Pinkerton liability.41 The Pinkerton analysis does not apply if the conviction of
the underlying Hobbs Act conspiracy is set aside. There was no testimony or evidence before the jury that
was sufficient to enable a rational jury to find that Lopez was involved as a "tipster" with the Arias episode.42
Consequently, following the dictates of Jackson, we conclude that there is insufficient evidence to support
the conviction of Lopez for Count IV relating to the Arias kidnapping.
V. Sufficiency of the Evidence as to the Carjacking Convictions of Orestes Hernandez, Echevarria,
Camacho, and Munoz
Orestes Hernandez, Echevarria, Camacho, and Munoz challenge their carjacking convictions under
18 U.S.C. § 2119. Echevarria, Munoz, and Orestes Hernandez were convicted of the January 11, 1996
carjacking involving Idania Arias. Orestes Hernandez also was convicted, along with Camacho, of the
November 13, 1996 carjacking in the Gonzalez episode. All four appellants argue the evidence was
defense, introduced testimony by way of a stipulation tending to demonstrate that he was in New York
City on December 24, 1995, the day Ilvigio recalled that he met Lopez.
41
The district court's Pinkerton liability jury instruction follows:
In some instances, a conspirator may be held responsible, under the law, for a substantive
offense in which he or she had no direct or personal participation if such offense was
committed by other members of the conspiracy during the course of such conspiracy and
in furtherance of its objects.
So, in this case, if you have first found a defendant guilty of the conspiracy
offense as charged in Count 1 of the Indictment, you may also find such defendant guilty
of any of the other offenses with which that defendant is charged, even if you find that
such defendant did not personally participate in such offense if you find beyond a
reasonable doubt three things:
1. That the offense charged in such count was committed by a conspirator during
the existence of the conspiracy and in furtherance of its objects.
2. That the defendant under consideration was a knowing and willful member of a
conspiracy at the time of the commission of such offense and;
3. That the commission of such offense by a coconspirator was a reasonable
foreseeable consequence of the conspiracy.
R.458, at 4074-75 (emphasis added).
42
The presentence report for Lopez sets forth a description of the criminal conduct and provides it
was based on information supplied by the U.S. Attorney's office and agents of the FBI. Paragraph
thirty-nine of the Lopez presentence report describes alleged admissions by Lopez to FBI agents in
January of 1997 regarding the Arias episode. However, to avoid a defense motion for severance, the
government agreed, prior to the trial, not to introduce testimony concerning the alleged admissions.
Consequently, the jury had no such evidence before it.
insufficient to convict them. More particularly, they argue the intent element of 18 U.S.C. § 2119 was
lacking, and they challenge the finding that the vehicles were taken by force and violence or by intimidation.
In addition, Orestes Hernandez and Echevarria challenge the finding that they participated in taking the
vehicles. As with appellants' insufficient evidence claim involving the Hobbs Act violations, the issue of
whether sufficient evidence was presented at trial to support appellants' convictions is a question of law
subject to de novo review. See U.S. v. Keller, 916 F.2d 628, 633 (11th Cir.1990).
"In order to be convicted of carjacking under 18 U.S.C. § 2119, the government must prove that the
defendant (1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been
transported, shipped or received in interstate or foreign commerce (4) from the person or presence of another
(5) by force and violence or intimidation." U.S. v. Applewhaite, 195 F.3d 679, 684-85 (3d Cir.1999) (internal
quotation marks, citation and footnote omitted). The required mens rea for carjacking was later clarified by
the Supreme Court in Holloway v. U.S., 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999): "The intent
requirement of [18 U.S.C. § ] 2119 is satisfied when the Government proves that at the moment the defendant
demanded or took control over the driver's automobile the defendant possessed the intent to seriously harm
or kill the driver if necessary to steal the car[.]" Id. at 12, 119 S.Ct. 966. To uphold the convictions, the
Court must conclude that there was sufficient evidence for a rational jury to conclude beyond a reasonable
doubt that Echevarria, Camacho, Munoz, and Orestes Hernandez intended to seriously harm or kill the driver
if necessary to steal the car.
Appellants' primary argument is that the intent element is lacking. Appellants rely on Applewhaite,
supra to support this argument. Appellants claim that, as in Applewhaite, their primary objective was to
kidnap and rob their victims—not to steal their vehicles—and that they simply took their vehicles as a means
of facilitating the kidnapping.
In Applewhaite, the evidence showed that the defendants' primary objective was simply to do serious
harm to the victim and that the defendants took the victim's van as an afterthought in an attempt to get the
victim's body away from the crime scene. Accordingly, we held that scienter was not established because,
although the defendants clearly intended to seriously harm or kill the victim, their intent had no nexus to the
taking of the victim's vehicle. Applewhaite, supra at 685. The Court, however, finds the present case clearly
distinguishable from Applewhaite.
The evidence in this case shows that gaining control of the victims' vehicles was an important step
in the extortion scheme and not a mere afterthought. In addition, the evidence reveals that resistance on the
part of the victims exposed them to more harm. The evidence presented at trial with regard to the carjackings
primarily came from Idania Arias, Armando Gonzalez, Ilvigio, and Escandell. Accordingly, the Court will
review this evidence.
A. The Arias Episode
The evidence surrounding the carjacking of Idania Arias's Lexus establishes that both the intent
element and the requirement of taking by force and violence or intimidation were established. Idania Arias
testified that she and her children were at their front door trying to unlock it when appellants approached her
with guns drawn. The car sat parked in the driveway with the doors locked. (R.382, at 1255; R.388, at 1670-
71). Ilvigio testified that Munoz and Echevarria got out with guns drawn and kidnapped Idania Arias while
Ilvigio and Orestes Hernandez, also with guns drawn, kidnapped the children. (R.382, at 1255). After
kidnapping Idania Arias and her children and putting them in the back of Echevarria's Jaguar, Munoz asked
her which key went to her car. (R.382, at 1255; R.388, at 1673). Munoz drove out with Idania Arias's
Lexus. (R.382, at 1255).
The fact that Idania Arias was not in her car refutes appellants' argument that her car primarily served
as a means to effectuate her kidnap. In addition, no argument can be made that her vehicle impeded the
kidnap because Echevarria's Jaguar was parked behind Idania Arias's Lexus in the driveway. To convict
appellants of carjacking, a rational jury must conclude beyond a reasonable doubt that appellants intended
to seriously harm the victim if necessary to steal the car. The evidence before the jury included the torture
of Nelson Martin, a prior victim within this same conspiracy scheme, and the fact that appellants had put duct
tape on Idania Arias's eyes, wrists, and ankles and on Joseph Arias. This evidence is sufficient for a jury to
conclude that the theft of the vehicle and the kidnapping were part of the same plan to extort money or rob
the victims from which the jury could conclude that appellants would seriously harm the victims if necessary
to steal their vehicles. The weapons brandished by appellants along with the fact that Idania Arias and her
children were taken by force support a jury's finding that the vehicle was taken by force and violence. Orestes
Hernandez's and Echevarria's arguments that the evidence was insufficient to show they participated in taking
the vehicles is entirely lacking in merit. Although only Munoz drove away with Idania Arias's Lexus, force
was exerted by all of them in order to steal her car. Accordingly, the carjacking convictions of Orestes
Hernandez, Munoz, and Echevarria are upheld.
B. The Gonzalez Episode
In the Gonzalez episode, appellants impersonated police by driving a white Chevrolet Caprice and
using a blue flashing light to pull Armando Gonzalez over. Gonzalez testified that, after he was pulled over,
he was approached by a gentleman in a police uniform who was pointing a revolver at him. (R.427, at 2634).
Gonzalez was told he was under arrest and told to get out of the car. Gonzalez was thrown to the ground and
blindfolded. His mouth was covered and he was handcuffed. Negrin then drove off with Gonzalez's truck.
Escandell's testimony reveals that all of these events were meticulously calculated by appellants. On
direct, Escandell provided vivid details of the kidnapping plan. Negrin and Escandell were in the Caprice
and Camacho and Orestes Hernandez followed behind them in Orestes Hernandez's Ford Explorer. When
Gonzalez pulled out of the driveway, Escandell and Negrin put the light on top of the car and pulled him over.
Camacho put Gonzalez in the back seat of the Caprice, which Escandell was driving. Orestes Hernandez
drove his Ford Explorer and Negrin drove Gonzalez's truck. Camacho rode in the back seat of the Caprice
with Gonzalez. From there, the appellants drove to Camacho's house in a particular order—Escandell was
in front in the Caprice, followed by Negrin in Gonzalez's truck and Orestes Hernandez in his Explorer.
Escandell testified that there was a reason for this order:
Since Mr. Gonzalez was in the first car, there was less possibility for a real police officer to stop us.
So, it was us, then ... Mr. Gonzalez's car was second so, then again, there was less possibility for him
to get stopped and Vlademir [Negrin] get a ticket under the victim's car. And then the Ford Explorer
was last so if by any chance it got stopped by a police officer, the car was fine and Hernandez had
a license and everything was fine.
(R.428, at 2815-16).
Escandell's testimony reveals that the theft of Gonzalez's vehicle was an essential part of the extortion
and robbery plan from the beginning. As with Idania Arias, there was no need for appellants to steal
Gonzalez's vehicle. At the time the vehicle was taken, appellants already had control over Gonzalez.
Appellants took Gonzalez by force and subsequently tortured him.
The question before the Court is whether a rational jury could conclude beyond a reasonable doubt
that appellants, at the moment they demanded or took control over the driver's automobile, possessed the
intent to seriously harm or kill Gonzalez if necessary to steal the car. Although not controlling, the Court
finds instructive, as based on similar facts, the case of U.S. v. Brown, 200 F.3d 700 (10th Cir.1999), cert.
denied, 528 U.S. 1178, 120 S.Ct. 1213, 145 L.Ed.2d 1114 (2000).
There were three defendants in Brown—Dixon, Brown, and McClelland. Their primary objective
was to rob someone. After locating a target, they followed the victim who pulled into a driveway to drop his
passengers off. The victim got out of his vehicle and said goodbye to his passengers. When he returned to
his vehicle, the defendants had parked directly behind him. Before the victim could get into his vehicle,
Brown cut him off, pointed a gun at him, and demanded his money and wallet. The victim complied. Brown
then demanded his jewelry. Dixon then instructed McClelland to get into the victim's vehicle. As the victim
removed his jewelry, Dixon began hitting him on the right side of his face.
One of the issues before the Brown court was whether there was sufficient evidence to support the
finding that defendants intended to cause death or serious bodily harm if necessary to steal the vehicle (i.e.,
whether the intent element was met). In response, the court stated, "Mr. McClelland testified that part of the
robbery plan was to take the victim's car, and, indeed, Mr. Dixon told Mr. McClelland to drive it away after
Mr. Dixon struck the victim. This in itself is sufficient evidence of Defendants' state of mind for a rational
jury to find intent." Brown, 200 F.3d at 705 (internal citations omitted).
Similarly, the taking of Gonzalez's vehicle was not appellants' primary objective. Rather, their
primary objective was to kidnap him for purposes of extortion. The evidence before the jury reveals that
appellants came at Gonzalez with weapons drawn, threw him to the ground, blindfolded him, handcuffed him,
and then threw him into the back of the car. Negrin then drove off with Gonzalez's vehicle. Based on this
evidence, the Court is satisfied that a rational jury could conclude beyond a reasonable doubt that appellants
intended to cause serious bodily harm to Gonzalez if necessary to steal his vehicle.
VI. Sufficiency of the Evidence as to the § 924(c) Convictions
Echevarria, Munoz, Camacho, and Orestes Hernandez were convicted of carrying and using a firearm
during a crime of violence in connection with the Martin and Arias episodes. Camacho and Orestes
Hernandez also were convicted of carrying and using a firearm during a crime of violence in connection with
the Gonzalez episode. Only Camacho directly challenges these convictions.43 Camacho argues the evidence
was insufficient because the government did not charge him with aiding and abetting and the government
provided no proof that Camacho used or carried any firearms. Neither argument has any merit.
The indictment charged a violation of 18 U.S.C. § 924(c) in Counts III, VI, VIII, and XI. Echevarria,
Munoz, Camacho, Orestes Hernandez, Lopez, and Diaz were charged under Counts III (for the Martin
episode) and VI (for the Arias episode). Camacho, Orestes Hernandez, and Negrin were charged under Count
43
The Court notes, however, that all appellants adopted the arguments raised by their co-appellants.
XI (for the Gonzalez episode).44 In addition, aiding and abetting was charged in conjunction with the § 924(c)
violations.
Pursuant to 18 U.S.C. § 924(c), it is unlawful for "any person who, during and in relation to any
crime of violence ... for which the person may be prosecuted in a court of the United States" to use or carry
a firearm or for any person "in furtherance of any such crime," to possess a firearm. See 18 U.S.C. § 924(c).
In Bailey v. U.S., 516 U.S. 137, 142, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that
a conviction for "using" a firearm required proof of active employment of a weapon and that proof of mere
possession was insufficient. The Court, however, made clear that its decision was intended to give new life
to the "carry" prong of § 924(c). This intent was recognized by this Court in Bazemore v. U.S., 138 F.3d 947,
950 (11th Cir.1998). The decision in Bailey, however, did not negate the applicability of the Pinkerton
doctrine to § 924(c) cases. U.S. v. Bell, 137 F.3d 1274, 1275 (11th Cir.1998) (per curiam). Accordingly,
criminal defendants remain liable for the reasonably foreseeable actions of their coconspirators—including
the using or carrying of a firearm during the commission of a crime of violence. See U.S. v. Bell, 137 F.3d
1274, 1275 (11th Cir.1998) (holding that coconspirator liability for a § 924(c) offense may be established
under Pinkerton liability).
At the close of evidence but before the jury was charged, the government amended the indictment,
over Camacho's objection, removing the aiding and abetting language and relying solely on the Pinkerton
instruction.45 The district court noted that the government could withdraw its request to proceed on an aiding
and abetting theory and that such withdrawal would not preclude the government from considering the §
924(c) charge under the Pinkerton theory. (R.432, at 3632).46 We agree.
It does not follow that, because the government could not prove that appellants aided and abetted
44
Lopez and Diaz were not present for any of the kidnappings and Camacho was not present for the
Arias kidnapping. The government originally believed the only way it could convict appellants who were
absent was by proving they aided and abetted in the commission of the crime. Realizing it was unable to
prove this with regard to Lopez and Diaz, the government dismissed the counts against them.
Subsequently, the government became aware of the availability of Pinkerton liability. At the close of
evidence, the government moved to dismiss aiding and abetting from the § 924(c) charges. Camacho's
trial counsel objected. See R.432, at 3628-41.
45
Camacho's argument appears to be based on the incorrect belief that aiding and abetting is a
separate offense. On the contrary, 18 U.S.C. § 2 only abolishes the common law distinction between
principals and accessories. See U.S. v. Scroger, 98 F.3d 1256 (10th Cir.1996).
46
The district court conducted a lengthy hearing discussing the relinquishment of aiding and abetting
as a theory for prosecution. (R.432, at 3628-41).
in the commission of a § 924(c) violation, no such violation occurred. On the contrary, because this Court,
along with a number of other courts, recognizes the application of the Pinkerton doctrine to establish a
substantive violation of § 924(c), a person not present when the offense was committed need not be an aider
and abetter in order to be found guilty of carrying or using a firearm during the commission of a violent
crime. Rather, an absent conspirator may be found guilty of violating § 924(c) if the carrying or using of a
firearm by a coconspirator is a reasonably foreseeable action of the conspiracy. Camacho's objections to the
dismissal of the aiding and abetting charges and to the government's sole reliance on Pinkerton liability for
the § 924(c) charge are groundless. There was no error on the part of the district court in its instruction of
the jury regarding Pinkerton and aiding and abetting. Accordingly, Camacho's convictions for carrying and
using a firearm during the three episodes will be upheld absent proof that such use during the Arias episode
was not foreseeable.
Camacho was present during the kidnappings of both Nelson Martin and Armando Gonzalez. The
Arias kidnapping fell in between these two episodes. There is no dispute that Camacho was not present
during the Arias kidnapping. He was called after Idania Arias and her children had been kidnapped, and he
went to the garage where Idania and her children were taken. From that point on, Camacho fully participated.
As discussed previously, Camacho can be found guilty of carrying or using a firearm during the
commission of a violent crime with respect to the Arias kidnapping if it is reasonably foreseeable that his
coconspirators would carry or use a firearm. The evidence before the jury established that weapons were used
during both the Martin and Gonzalez kidnappings establishing that such use was part of the scheme. In fact,
there is no evidence to support Camacho's argument that he did not foresee that his coconspirators would
commit such offenses and use firearms during their commission.
Camacho's final argument is that he was not a member of the conspiracy and, hence, cannot be found
guilty of the acts of the other appellants. The Court, however, has determined that Camacho knew of the
conspiracy and was a voluntary participant. Accordingly, this is a losing argument and appellants' § 924(c)
convictions are affirmed.
VII. Procedural and Pretrial Issues
A. Severance, Mistrial, and Improper Joinder Issues
1. Severance
Echevarria argues that the district court abused its discretion in denying his motion for severance.47
He contends that the jury was unable to sift through the evidence and make an individualized determination
as to each defendant. Echevarria adds that severance was necessary due to the improper joinder of defendants
and offenses.
The Court has placed a heavy burden on a defendant who seeks to obtain a reversal on the basis of
the denial of a severance motion.
The prevailing attitude is that persons who are charged together should be tried together. This is
based largely on the desire to avoid multiple litigation and to conserve judicial resources. The
granting or denial of a severance is within the discretion of the trial judge, and will be overturned
only for abuse of discretion. In order to show that the trial judge abused his discretion in failing to
grant a severance, the appellant must demonstrate that the denial of a severance resulted in specific
and compelling prejudice against which the trial court was unable to afford protection. Only if the
jury could not separate the evidence relevant to each appellant and render a fair and impartial verdict
as to each should severance be granted.
U.S. v. Butler, 792 F.2d 1528, 1534 (11th Cir.1986) (internal citations omitted). The jury's ability to reach
different verdicts as to different defendants is one factor that signifies the jury's ability to make individualized
determinations. See, e.g., U.S. v. Starrett, 55 F.3d 1525, 1553 (11th Cir.1995). In evaluating the district
court's denial of severance, we are mindful of the fact that "the Constitution does not guarantee a trial free
from the prejudice that inevitably accompanies any charge of heinous group crime; it demands only that the
potential for transference of guilt be minimized to the extent possible under the circumstances ...." Id. (quoting
U.S. v. Elliott, 571 F.2d 880, 905 (5th Cir.1978)).
Echevarria also alleged prejudice resulting from a "spill-over" effect. Accordingly, he must
demonstrate the jury's inability to make an individualized determination as to each defendant. See Butler,
792 F.2d at 1534. Echevarria's main argument is that evidence relating to Counts VII through XI for acts that
occurred after Echevarria had been arrested, resulted in compelling prejudice. This argument is unconvincing.
Echevarria was not charged with any of those counts, and the evidence against him relating to Counts I
through VI was more than overwhelming. In addition, the court ordered the government to announce against
whom the evidence was offered, and the court issued a limiting instruction with regard to the evidence on
Counts VII through XI stating that Echevarria, Munoz, Diaz, and Lopez had not been charged in those counts.
(R. 427 at 2628-30). Under these circumstances, Echevarria has not made a sufficient showing of compelling
prejudice.
47
Lopez also makes a similar argument. In view of our decision vacating the Lopez convictions, we
need not address Lopez's claim.
2. Mistrial
Echevarria argues that the following events warranted a mistrial: (1) the introduction of evidence
regarding the type of ammunition recovered from coconspirator Munoz's home; (2) testimony that it is illegal
for a convicted felon to possess ammunition; (3) prosecutorial misconduct; and (4) the inclusion of facts not
in evidence in the government's closing argument.
We review the district court's refusal to grant a mistrial for abuse of discretion. If a district court
issues a curative instruction, we will reverse only if the evidence "is so highly prejudicial as to be incurable
by the trial court's admonition." U.S. v. Trujillo, 146 F.3d 838, 845 (11th Cir.1998) (quoting U.S. v. Funt,
896 F.2d 1288, 1295 (11th Cir.1990)).
Echevarria argues that the testimony regarding the type of ammunition found in Munoz's home and
the fact that convicted felons cannot possess ammunition was elicited for the improper purpose of prejudicing
the appellants. We disagree. The district court heard arguments from both the government and defense
counsel and found that such testimony was relevant to issues in the case. In addition, it was defense counsel
that opened the door to the question of whether it was illegal to possess ammunition.
Echevarria's final argument for mistrial relates to the government's actions. Echevarria claims a
mistrial should have been granted when the government started to laugh at the defense when a witness stood
up and began to gesture in response to a defense question. An examination of the record reveals that on
cross-examination, Idania Arias was questioned about her identity of Sergio Echevarria as "cat eyes." This
question apparently triggered something inside of her and she stood up gesturing towards Echevarria and
speaking in Spanish. Before an interpretation was given, counsel for Echevarria objected that her answer was
nonresponsive—although he was unable to understand what the answer was since he did not speak Spanish.
The government did not understand what her answer was and began to laugh when counsel for Echevarria
objected because they knew he did not know what had been said. The district court issued an admonishment,
which was sufficient in curing any prejudice to appellant.
3. Misjoinder
Echevarria argues that his convictions should be reversed because the district court improperly
permitted joinder of defendants and unrelated offenses in the same indictment. Reversal based on improper
joinder is only required if "it results in actual prejudice because it had substantial and injurious effect or
influence in determining the jury's verdict." U.S. v. Dominguez, 226 F.3d 1235, 1238 (11th Cir.2000). The
question of whether initial joinder of offenses is proper under Fed.R.Crim.P. 8 is to be determined by the trial
court before trial. This determination is made by examination of the allegations stated on the face of the
indictment. See id.Based on a review of the indictment, it is apparent that there was no misjoinder of offenses. The
offenses charged include the conspiracy and the substantive Hobbs Act violations. In addition, the counts
relating to the carjackings and the use of firearms are included. The offenses charged in Counts II through
XI constitute a series of acts committed in furtherance of the overall conspiracy as charged in Count I and,
hence, were properly joined under Rule 8(a). Moreover, because the offenses as alleged in the fourth
superseding indictment were factually similar and those allegations show a substantial overlap of participants,
the joinder of parties also was proper under Rule 8(b).
B. In-Court and Out-of-Court Identifications
Munoz challenges his conviction based on the in-court and out-of-court identifications made by
Idania Arias. Munoz claims that the district court violated his constitutional rights when it admitted evidence
of an out-of-court identification and allowed an in-court identification allegedly based on unduly suggestive
government procedures.
This Court employs a two-step analysis in assessing the constitutionality of a trial court's decision
to admit an out-of-court identification. Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir.1988). First, we must
determine whether the original identification procedure was unduly suggestive. If we conclude that it was
suggestive, we then must consider whether, under the totality of the circumstances, the identification was
nonetheless reliable. Id. (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972);
Dobbs v. Kemp, 790 F.2d 1499, 1506 (11th Cir.1986)). Factors to be considered in determining whether the
identification was reliable include: (1) opportunity to view; (2) degree of attention; (3) accuracy of the
description; (4) level of certainty; and (5) length of time between the crime and the identification. Neil v.
Biggers, 409 U.S. at 199, 93 S.Ct. 375.
The district court concluded that the identification procedure was not impermissibly suggestive. This
conclusion is subject to a clearly erroneous standard. See Cikora, 840 F.2d at 896; cf. id. at 895 (stating that
"[t]he district court's ultimate conclusion, taking into consideration the five factors of the Neil v. Biggers test,
that [the defendant] was not deprived of due process by the admission of the out-of-court identification, is
subject to plenary review as a mixed question of fact and law.").
We cannot conclude that the district court was clearly erroneous when it held that the pretrial
identification procedure was not impermissibly suggestive. First, we disagree that the facts surrounding the
out-of-court identification by Idania Arias are similar to the facts in Foster v. California, 394 U.S. 440, 89
S.Ct. 1127, 22 L.Ed.2d 402 (1969). The identification procedure in Foster consisted of an initial lineup in
which the petitioner stood out from the other two men by the contrast of his height and by the fact that he was
wearing a leather jacket similar to that worn by the robber. Since no identification was made, the police
permitted a one-to-one confrontation between the petitioner and the witness, which resulted in a tentative
identification. A final lineup was arranged in which the petitioner was the only person who had appeared in
the first lineup.
In this case, the initial lineup prepared by the FBI was shown to both Idania Arias and Joseph Arias,
but it was shown to them separately. Joseph Arias was able to make a positive identification, but Idania Arias
did not. Approximately two weeks later, police visited Idania Arias and showed her another lineup. Again
Joseph Arias and Idania Arias were shown the lineup separately and, again, Joseph Arias made a positive
identification while Idania Arias did not. Almost six months later, based on a new photograph the FBI
obtained of Munoz, Idania Arias was shown another lineup. This time she was able to positively identify
Munoz. In addition, she was able to identify Munoz in court.
Based on the foregoing, we do not find the district court's decision that the identification procedures
were not impermissibly suggestive to be clearly erroneous.48
C. Enforcement of the District Court's Sequestration Order
Echevarria maintains that the district court erred in failing to grant a mistrial or, alternatively, to strike
the testimony of the government's witnesses following violations of the court's sequestration order.
According to Echevarria, the government met and spoke with Ilvigio, allowing him to help guide its case, and,
after being admonished for doing so, the government later improperly spoke with Nelson Martin.49 The
48
Munoz also contends that Idania Arias's in-court identification of him violated his due process
rights. Assuming for the sake of argument that the in-court identification violated due process, Munoz's
contention is not a sufficient ground for reversal of his conviction. The admission of unreliable
identification is subject to harmless error analysis. Marsden v. Moore, 847 F.2d 1536, 1546 (11th
Cir.1988). After reviewing the overwhelming evidence against Munoz, we are left with no doubt that the
jury would have convicted him even absent the purportedly unreliable in-court identification.
49
The violation that occurred involving Ilvigio will not be addressed. In response to the violation of
the sequestration order, the court allowed defense counsel to inquire of Ilvigio about the contact in front
of the jury and to argue it during closing. In addition, the court gave the government a strong
admonishment. (R.388, at 1448-49). When asked if any additional relief was requested, no one
alleged violation of the sequestration order with regard to Martin occurred when the government was
permitted to reopen its case to insure that Nelson would testify that Echevarria had a gun in his possession
as described in Count III. The government's response to Echevarria's argument is that there was no showing
of prejudice because both witnesses were available for cross-examination.
The Supreme Court in Geders v. U.S., 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) stated
that the judge's power to control the progress and the shape of the trial includes broad power to sequester
witnesses before, during, and after their testimony. When a violation of the sequestration rule occurs, the
court may respond in one of three ways: (1) it may cite the guilty party for contempt; (2) it may allow
opposing counsel to cross-examine the witnesses as to the nature of the violation; or (3) where counsel or
the witness violate the rule intentionally, the court may strike testimony already given or disallow further
testimony. U.S. v. Lattimore, 902 F.2d 902, 904 (11th Cir.1990). "The district court's denial of a mistrial for
violation of the sequestration rule is ... a matter of discretion and reversible only on a showing of prejudice."
Id. (quoting U.S. v. Jimenez, 780 F.2d 975, 978 (11th Cir.1986) (citing U.S. v. Womack, 654 F.2d 1034 (5th
Cir.1981))).
We find that the violation of the sequestration order resulted in no prejudice. Echevarria argues that
the district court erred by allowing Nelson Martin to be recalled to the stand more than two weeks after his
initial testimony to clarify what he meant by his testimony that he was physically taken by "armed" men. Just
prior to Martin's being called to the stand, the government spoke with Martin and asked him what the
kidnappers had held in their hands. Martin responded "guns." Counsel for Echevarria then moved to exclude
the testimony of Martin. (R.430, at 3133). The court determined that the violation of the order was not in
bad faith, particularly since Nelson was recalled for only a specific purpose—to clarify the meaning of
"armed." Following the direct examination of Martin regarding the meaning of "armed," defense counsel
were able to cross examine Martin. During cross examination, defense counsel brought out the fact that,
although the pistols existed two weeks ago when Martin originally testified, he never explicitly referenced
them. Accordingly, we find no prejudice.
VIII. Sentencing Issues
A. Introduction
responded. (Id.). A mistrial was never requested. Accordingly, there is no denial of a motion for mistrial
for this Court to review.
The sentences were imposed by the district court and briefs filed by the appellants prior to the
issuance of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As a
consequence, several of the appellants have raised Apprendi issues by way of supplemental briefs. Initially,
we observe that the government, in its supplemental brief filed on January 3, 2001,50 has identified an error
as to the sentencing of Orestes Hernandez and Camacho with respect to their carjacking convictions as alleged
in Count X. The court imposed twenty-five year sentences on both Orestes Hernandez and Camacho for these
convictions. Although the fourth superseding indictment charged Orestes Hernandez and Camacho with
simple carjacking under 18 U.S.C. § 2119(1), they were sentenced under 18 U.S.C. § 2119(2), which requires
the additional statutory element that serious bodily injury resulted from the carjacking.51 As the indictment
failed to allege that required element under 18 U.S.C. § 2119(2), the sentences for Orestes Hernandez and
Camacho must be vacated and remanded for resentencing under the provisions of 18 U.S.C. § 2119(1).
Because we vacate and remand the sentences of Orestes Hernandez and Camacho for resentencing
without reference to serious bodily injury, their Apprendi argument is moot. Moreover, contrary to the
appellants' claims, Sentencing Guideline issues are not subject to the Apprendi rule and, thus, there is no
requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt. See U.S. v.
Harris, 244 F.3d 828 (11th Cir.2001). Thus, Echevarria's Apprendi argument likewise has no merit.
B. Guideline Issues Raised by the Appellants52
Echevarria, Munoz,53 Orestes Hernandez,54 and Camacho55 object to the five-level weapon
50
Oral argument was conducted in this case on November 7, 2000.
51
The maximum sentence under 18 U.S.C. § 2119(2) is twenty-five years while the maximum under
18 U.S.C. § 2119(1) is fifteen years.
52
Although only Echevarria and Orestes Hernandez raise issues regarding the Sentencing Guidelines
in their supplemental briefs, these issues were also raised in their original briefs, which, pursuant to Fed.
R.App. P. 28(i), were adopted by Camacho and Munoz. Accordingly, the Court addresses this matter as it
relates to all four appellants.
53
Echevarria and Munoz were convicted of two violations of 18 U.S.C. § 924(c) arising from the
Martin and Arias episodes, which resulted in consecutive sentences totaling 25 years.
54
Orestes Hernandez was convicted of three § 924(c) violations arising from the Martin, Arias, and
Armando Gonzalez episodes, which resulted in consecutive sentences totaling 45 years.
55
Camacho was convicted of four § 924(c) violations arising from the Martin, Arias, Rosa Gonzalez,
and Armando Gonzalez episodes, which resulted in consecutive sentences totaling 65 years.
enhancements taken with respect to counts charging robbery, Hobbs Act violations, and carjacking. The
district court, in calculating the offense level for the appellants' respective convictions on counts charging a
Hobbs Act conspiracy, substantive Hobbs Act violations, and carjacking, applied a five-level enhancement
for the brandishing or possession of a firearm by a codefendant, which was consistent with its finding that
another defendant also wielded a firearm and with the teaching of U.S. v. Kimmons, 965 F.2d 1001 (11th
Cir.1992), cert. denied, 506 U.S. 1086, 113 S.Ct. 1065, 122 L.Ed.2d 370 (1993), cert. granted, vacated by,
508 U.S. 902, 113 S.Ct. 2326, 124 L.Ed.2d 239 (1993). However, in light of the November 1, 2000
Amendment No. 599 to the Sentencing Guidelines, Orestes Hernandez, Camacho, Echevarria, and Munoz
claim their sentences on these counts should be remanded.56 The Court agrees.
The Presentence Investigation Report ("PSI") of Echevarria illustrates the double counting issue
raised by all four appellants. In determining the offense level for the Hobbs Act conspiracy charged in Count
I and the substantive Hobbs Act violation charged in Count II, the PSI provides as follows:
[N]o enhancement for the gun carried by Sergio Echevarria will be made. However, Sergio
Echevarria was one of two defendants who carried a gun during this crime of violence. Since a
coconspirator and codefendant carried a firearm that was brandished, displayed, or possessed, the
offense level is increased by five levels in accordance with § 2B3.2(b)(3)(A)(iii).
(PSI of Echevarria, ¶ 69). Although the language may vary, the same reasoning was used with regard to all
counts charging Echevarria, Camacho, Munoz, and Orestes Hernandez with either Hobbs Act conspiracy,
substantive Hobbs Act violations, or carjacking.
Amendment 599 to the Sentencing Guidelines affects the Commentary to U.S.S.G. § 2K2.457
captioned "Application Notes." Note 2 of the Application Notes, as amended, provides as follows:
If a sentence under this guideline is imposed in conjunction with a sentence for an underlying
offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence for the underlying offense. A sentence
under this guideline accounts for any explosive or weapon enhancement for the underlying offense
of conviction, including any such enhancement that would apply based on conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct). Do not apply any weapon enhancement
in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly
undertaken criminal activity, possessed a firearm different from the one for which the defendant was
convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant
possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. §
924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under
18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply
56
The government's response to appellants' discussion of the impact of the new Sentencing Guideline
amendments was to ask the Court to strike that portion of appellants' briefs.
57
U.S.S.G. § 2K2.4 addresses the offense conduct for the use of a firearm, armor-piercing
ammunition, or an explosive during or in relation to certain crimes.
to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.
U.S.S.G. § 2K2.4, cmt. n. 2.58 The first sentence of the new application note reinforces what courts have
always known—when a defendant is convicted of a § 924(c) violation and an underlying offense, the
defendant's possession of a weapon cannot be used to enhance the level of the underlying offense. A review
of the PSIs for Orestes Hernandez, Munoz, Camacho, and Echevarria reveals that no enhancement was
applied to the underlying offense level as a result of the individual defendant's possession of a firearm.
Accordingly, no error was made.
The second sentence of Application Note 2 as amended by Amendment 599 deals with the effect of
Relevant Conduct. Pursuant to U.S.S.G. § 1B1.3, relevant conduct includes, in the case of a jointly
undertaken criminal activity (whether or not charged as a conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity. Accordingly, in the case at bar,
relevant conduct of one appellant would include all reasonably foreseeable acts and omissions of every
co-appellant found to be involved in the conspiracy. Courts have inconsistently applied U.S.S.G. § 1B1.3,
which provides for a five level enhancement where a firearm is brandished or possessed, in conjunction with
U.S.S.G. § 2K2.4.59 More particularly, there has not been uniformity in regard to how the possession of a
58
Prior to the November 1, 2000 amendment, Application Note 2 to U.S.S.G. § 2K2.4 provided as
follows:
Where a sentence under this section is imposed in conjunction with a sentence for an
underlying offense, any specific offense characteristic for the possession, use, or
discharge of an explosive or firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be
applied in respect to the guideline for the underlying offense.
In a few cases, the offense level for the underlying offense determined under the
preceding paragraph may result in a guideline range that, when combined with the
mandatory consecutive sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a),
produces a total maximum penalty that is less than the maximum of the guideline range
that would have resulted had there not been a count of conviction under 18 U.S.C. §
844(h), § 924(c), or § 929(a) (i.e., the guideline range that would have resulted if the
enhancement for possession, use, or discharge of a firearm had been applied). In such a
case, an upward departure may be warranted to that the conviction under 18 U.S.C. §
844(h), § 924(c), or § 929(a) does not result in a decrease in total punishment. An
upward departure under this paragraph shall not exceed the maximum guideline range
that would have resulted had there not been a count of conviction under 18 U.S.C. §
844(h), § 924(c), or § 929(a).
59
See U.S. v. Gonzalez, 183 F.3d 1315, 1325-26 (11th Cir.), cert. denied, 528 U.S. 1144, 120 S.Ct.
996, 145 L.Ed.2d 943 (2000) (stating both statutory and guideline increases may be imposed if defendant
and accomplice used different weapons as part of joint undertaking); U.S. v. Willett, 90 F.3d 404, 407-08
(9th Cir.1996) (finding no double counting in applying both increases for separate weapons possessed by
defendant). But see U.S. v. Knobloch, 131 F.3d 366, 372 (3d Cir.1997) (stating it an error to apply
guideline enhancement in addition to statutory penalty "even if the section 924(c)(1) sentence is for a
firearm by a codefendant affects the computation of the offense level for the underlying offense for which
the defendant was convicted. The second sentence of Application Note 2, as amended by Amendment 599,
addresses this issue.
The Commentary to § 2K2.4, as amended, states that a sentence under U.S.S.G. § 2K2.4 accounts
for any weapon enhancement for the underlying offense of conviction including any enhancement based on
conduct for which the defendant is accountable under U.S.S.G. § 1B1.3. Accordingly, relevant conduct
cannot be used to enhance the offense level of the underlying offense. In the case at bar, the district court
could not enhance the offense level for the Hobbs Act conspiracy, substantive Hobbs Act violations, and
carjacking convictions of one appellant based on the fact that a co-appellant brandished or possessed a
weapon. However, the PSIs called for appellants Orestes Hernandez, Camacho, Echevarria, and Munoz to
receive the five level enhancement for the underlying offense conduct, and the district court properly denied
the objections for the so-called "double counting" based on Kimmons, supra. However, by virtue of
Amendment 599, the appellants are no longer subject to "double counting" or the teaching of Kimmons,
supra, as Amendment 599 has been given retroactive status.60
With the retroactivity of Amendment 599 established, the provisions of U.S.S.G. § 1B1.10 and 18
U.S.C. § 3582(c)(2) apply, resulting in a possible reduction of appellants' previously properly imposed
sentence. Section 1B1.10 of the Sentencing Guidelines provides:
(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable
to that defendant has subsequently been lowered as a result of an amendment to the Guidelines
Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is
authorized under 18 U.S.C. § 3582(c)(2).....
(b) In determining whether, and to what extent, a reduction in the term of imprisonment is
warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should
consider the term of imprisonment that it would have imposed had the amendment(s) to the
guidelines listed in subsection (c) been in effect at the time the defendant was sentenced, except that
in no event may the reduced term of imprisonment be less than the term of imprisonment the
defendant has already served.
U.S.S.G. § 1B1.10(a) & (b). The procedure for bringing the issue of a possible reduction of a previously
properly imposed sentence before the district court is provided by 18 U.S.C. § 3582(c)(2):
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a
different weapon than the weapon upon which the enhancement is predicated.").
60
U.S.S.G. § 1B1.10 instructs the Court as to whether or not a reduction in the defendant's term of
imprisonment is authorized as a result of an amendment to the Guidelines Manual. If the amendment is
listed in subsection (c) of § 1B1.10, a reduction is authorized. Amendment 599 is so listed.
sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28
U.S.C. 994(o ), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own
motion, the court may reduce the term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added).
The Court has already concluded that the sentences of Orestes Hernandez and Camacho must be
vacated and this case be remanded as to those appellants. Moreover, we construe the brief of Echevarria
raising the issue of the application of Amendment 599 as a motion for the district court to revisit the sentences
of Echevarria pursuant to 18 U.S.C. § 3582(c)(2). In addition, by adoption of each other's motions, the Court
recognizes similar motions on behalf of Orestes Hernandez, Camacho, and Munoz. Accordingly, the district
court must determine whether, and to what extent, a reduction in the term of imprisonment is warranted for
these four appellants.
Consequently, the previously imposed sentences affected by the provisions of Amendment 599 are
vacated and remanded for consideration in light of the amendment. In determining to what extent a reduction
in the term of imprisonment is warranted, the district court should consider the term of imprisonment it would
have imposed had Amendment 599 been in effect at the time the appellants were sentenced along with the
discretion vested in the district court by Application Note 3 to U.S.S.G. § 1B1.10.61
In light of the recent amendments to the Sentencing Guidelines, Echevarria's sentences as to Counts
I, II, IV, and V, Orestes Hernandez's sentences as to Counts I, II, IV, V, VII, IX, and X, Camacho's sentences
as to Counts I, II, IV, VII, IX, and X, Munoz's sentences as to Counts I, II, IV, and V are vacated and
remanded for recalculation and reconsideration in accordance with Application Note 2 of U.S.S.G. § 2K2.4
61
Application Note 3 provides:
Under subsection (b), the amended guideline range and the term of imprisonment
already served by the defendant will limit the extent to which an eligible defendant's
sentence may be reduced under 18 U.S.C. § 3582(c)(2). When the original sentence
represented a downward departure, a comparable reduction below the amended guideline
range may be appropriate; however, in no case shall the term of imprisonment be
reduced below time served. Subject to these limitations, the sentencing court has the
discretion to determine whether, and to what extent, to reduce a term of imprisonment
under this section.
U.S.S.G. § 1B1.10, cmt. n. 3.
and Application Note 3 to U.S.S.G. § 1B1.10.62
IX. Conclusion
The conviction and sentence for Gloria Diaz is AFFIRMED. The convictions of Sergio Echevarria,
Eladio Munoz, Orestes Hernandez, and Ismael Camacho are AFFIRMED. The sentences of Orestes
Hernandez and Camacho for their convictions of Count X are vacated and remanded for resentencing as
directed by this opinion. The sentences of Orestes Hernandez for Counts I, II, IV, V, VII, IX, and X, the
sentences of Camacho for Counts I, II, IV, VII, IX, and X and the sentences of Echevarria and Munoz for
Counts I, II, IV, and V are vacated for resentencing consistent with Application Note 2 of U.S.S.G. § 2K2.4
as amended by Amendment 599 and Application Note 3 to U.S.S.G. § 1B1.10. The remaining sentences of
Camacho for Counts III, VI, VIII, and XI are AFFIRMED. The remaining sentences of Orestes Hernandez
for Counts III, VI, and XI are AFFIRMED. The remaining sentence of Echevarria for Count III is
AFFIRMED. The remaining sentences of Munoz for Counts III and VI are AFFIRMED.
The convictions of Jose Blas Lopez are REVERSED, Lopez's sentence is VACATED, and this case
is REMANDED to the district court to enter a judgment of ACQUITTAL and an order for the DISCHARGE
of Jose Blas Lopez.63
62
Echevarria also argues that his offense level was incorrectly increased by three based on the court's
finding that the loss was more than $250,000 but less than $800,000. The amount of money demanded
initially by the Arias kidnappers was $500,000. U.S.S.G. § 2B3.1(b)(7) adds three levels where the "loss"
is more than $250,000 but less than $800.000. No money was obtained in the Arias episode. However,
we find that the "loss" was correctly determined by applying Application Note 3 to U.S.S.G. §
2B3.1(b)(7), which notes that valuation of loss is discussed in Commentary to § 2B1.1 (Larceny,
Embezzlement and Other Forms of Theft). U.S.S.G. § 2B1.1 references § 2X1.1 (Attempts...or
Conspiracy), which states: "In an attempted theft, the value of the items that the defendant attempted to
steal would be considered." U.S.S.G. § 2X1.1, cmt. n. 2. There is no dispute that the amount of ransom
initially demanded was $500,000. Accordingly, we find no error in the calculation of the loss.
63
See Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding that the Double
Jeopardy Clause precludes a second trial once the reviewing court finds the evidence legally insufficient
and that the only just remedy is the direction of a judgment of acquittal).