United States v. Luis Angel Lopez , 562 F. App'x 891 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10188
________________________
D.C. Docket No. 8:11-cr-00269-SDM-AEP-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ANGEL LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 9, 2014)
Before PRYOR and MARTIN, Circuit Judges, and GOLD, * District Judge.
PER CURIAM:
Luis Angel Lopez appeals his conviction for the murder of Thomas Lee
Sehorne after Mr. Sehorne’s wife and her boyfriend hired Lopez to kill Mr.
*
Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
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Sehorne for the proceeds of a life insurance policy. 18 U.S.C. § 1958(a). Lopez
challenges the denial of his renewed motion for a judgment of acquittal and motion
for a new trial. Because the United States presented ample evidence to support
Lopez’s conviction and the credibility of that evidence was for the jury to decide,
we affirm.
I. BACKGROUND
In 2005, Cristie Sehorne and Jerry Bottorff met at a swingers club named
the “Pleasure Palace” in Tampa, Florida. Mrs. Sehorne, who later became Mrs.
Bottorff, frequented the club with her then-husband, Thomas Lee Sehorne, to swap
partners with other couples. Mrs. Sehorne became acquainted with Bottorff
because he worked at the front desk of the club, and the two began a relationship.
Mr. Sehorne, who often worked out of town for weeks on a tugboat on the Great
Lakes, was aware of their relationship. He even gave his permission to Bottorff.
Mrs. Sehorne and Bottorff continued to date, and Mrs. Sehorne eventually
decided that she wanted to be with Bottorff exclusively. But Mrs. Sehorne
depended on Mr. Sehorne financially, and Bottorff did not make enough money to
support her and her two children. So Mrs. Sehorne and Bottorff hatched a scheme
to murder Mr. Sehorne for $1 million in benefits from his life insurance policy. At
first the two discussed the idea in jest, but the discussions later became serious.
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Bottorff approached Michael Garcia, a friend of his from the Pleasure
Palace, about murdering Mr. Sehorne. Garcia, a career criminal, was once a high-
ranking officer in the Latin Kings gang. Garcia has prior convictions for
distributing narcotics, possession of a firearm as a felon, possession of
ammunition, burglary, grand theft, and possession of burglary tools. In total,
Garcia has 15 federal convictions and 10 state convictions.
Garcia was often at the Pleasure Palace to sell drugs, and he became friends
with Bottorff and Mrs. Sehorne. Eventually, Bottorff approached Garcia about
“tak[ing] care” of Mr. Sehorne for him. Garcia replied that he could probably
arrange something. He eventually agreed to find someone to murder Mr. Sehorne
for $60,000, and Bottorff and Garcia met several times after that, sometimes with
Mrs. Sehorne and sometimes without her. The couple frequently met with Garcia
in his driveway to discuss their plans so that Garcia’s family would not be privy to
the conversations.
Garcia played the role of the “middle man,” whose task was to find
someone to commit the murder. There was conflicting testimony at trial as to
whether Garcia ever planned to commit the murder himself, but it was undisputed
that both Mrs. Sehorne and Bottorff eventually became aware that someone other
than Garcia would commit the murder. Garcia planned with Mrs. Sehorne and
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Bottorff to have Mr. Sehorne murdered “whenever it was possible,” but the
conspirators never set a deadline.
Garcia eventually included Lopez, who he knew from the Latin Kings and
with whom he had burgled a beauty shop in 2007, in the scheme to murder Mr.
Sehorne. Lopez, also known as “Proof,” was at Garcia’s home one day when Mrs.
Sehorne and Bottorff arrived to discuss murdering Mr. Sehorne. Mrs. Sehorne and
Bottorff remained in the front yard, and Lopez remained inside the house. When
Lopez later asked about the couple, Garcia explained who they were and what they
wanted, and Lopez then offered to commit the crime for $60,000.
Garcia and Lopez’s first attempt to murder Mr. Sehorne failed. They knew
from Mrs. Sehorne that Mr. Sehorne often took smoke breaks near a trampoline in
the Sehornes’ yard, so they hid behind trees and waited for Mr. Sehorne to take a
smoke break for approximately an hour or an hour and a half. Lopez held the gun,
which was an 80-year-old .38 revolver owned by Garcia, and the same weapon that
Lopez later used to commit the murder. But Mr. Sehorne never emerged from the
house, and Garcia and Lopez fled when neighborhood dogs started barking.
In the early hours of June 7, 2007, Garcia and Lopez returned to the
Sehornes’ home, and Lopez murdered Mr. Sehorne. They knew from Mrs. Sehorne
that Mr. Sehorne would be transporting a friend from the airport at night and that
he would be home late. They left Garcia’s house around midnight, and they carried
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the same .38 revolver that they had taken during the first murder attempt. When
they arrived at the Sehornes’ home, Garcia acted as the lookout and Lopez was
“the trigger man.” At Lopez’s trial, Garcia testified that he hid behind a burn pile
in the yard to keep watch for Mr. Sehorne’s truck. For his part, Lopez hid under a
van in the carport and waited for Mr. Sehorne to return home.
Garcia had never tested the revolver to see if it would shoot. He also knew
nothing about Lopez’s ability to shoot a gun. And Garcia knew not whether the
ammunition in the gun would fire.
When Mr. Sehorne arrived around 1:15 or 1:30 a.m., he parked under the
carport. He then left the truck and walked toward the house. Garcia testified at trial
that he could not see what happened next, but he heard an unknown voice say, “Oh
God, no,” and heard two gunshots. Garcia and Lopez then ran back to the car, and
Lopez drove them back to Garcia’s garage, where they cut off the barrel of the
revolver with bolt cutters in an attempt to render the gun unidentifiable. Later that
night, after Lopez had returned home, Garcia drove to a nearby river and threw the
gun and the shoes that the two men had worn into the water. He also disposed of
the clothes that they had worn by dropping them in a nearby trash bin.
Garcia spoke with Lopez several times after the murder, and phone records
established frequent calls between their phones near the time of the murder. The
records proved calls between the phones on June 6, 2007, at 11:28 p.m., and on
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June 7, 2007, at 12:36 a.m. and 12:44 a.m. The next call between the phones was at
3:12 a.m, and Garcia testified at Lopez’s trial that Lopez had called him after
returning home from the murder. He also spoke with Lopez on the phone several
times over the next couple of days, but they never discussed the murder. Lopez
later called Garcia to inform him that the newspaper had run a story about the
murder. And Lopez discussed his payment with Garcia about a week after the
murder, with several additional conversations on that topic.
About a year later, police officers arrested Garcia for crimes unrelated to
the murder of Mr. Sehorne. Garcia cooperated with the police, and he informed
them of his involvement in the murder of Mr. Sehorne, including where he had
disposed of the murder weapon. He cooperated for roughly two years before he
entered a plea agreement for Mr. Sehorne’s murder. As part of his cooperation, he
helped law enforcement gather enough evidence to arrest Mrs. Sehorne and
Bottorff. He also informed law enforcement of Lopez’s involvement in the murder.
When a federal grand jury returned an indictment charging Lopez with
three offenses, Garcia had already pleaded guilty, and Mrs. Sehorne and Bottorff
pleaded guilty soon afterward. The United States charged Lopez with the use of a
facility of interstate commerce to commit the murder-for-hire of Mr. Sehorne, 18
U.S.C. § 1958(a); id. § 2; conspiring to use a facility of interstate commerce to
commit the murder-for-hire, 18 U.S.C. § 1958(a); id. § 2; and knowingly using and
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carrying a firearm in furtherance of the murder-for-hire, 18 U.S.C. § 924(c), (j)(1).
Lopez pleaded not guilty and proceeded to trial.
The United States presented Garcia as the key witness in its case against
Lopez. Garcia testified that Bottorff and Mrs. Sehorne met Lopez at one point, but
that they did not discuss anything related to the murder. On cross-examination,
Lopez’s defense attorney attempted to refresh Garcia’s recollection that he had told
law enforcement officers in 2008 that Lopez was present for two meetings with
Mrs. Sehorne and Bottorff to discuss the murder, but Garcia did not recall that
statement. Garcia also testified that he hid by a burn pile during the murder of Mr.
Sehorne. But on cross-examination, Lopez’s defense attorney asked Garcia
whether he had told law enforcement in 2008 that he hid under the trampoline, not
the burn pile. Garcia testified that he did not remember that statement either.
Garcia also testified that, at first, both he and Lopez had their cell phones the night
of Mr. Sehorne’s murder, but that “I think, if I’m not mistaken, [Lopez] took [his
phone] back to his—the mother of his children[, Nina Torres].” He also testified
that Lopez had used Garcia’s cell phone that night to talk with Torres on the phone
that Lopez gave to her. Finally, Garcia testified that he never stood to gain
anything from Mr. Sehorne’s murder and that he became involved only to help his
friends.
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Bottorff also testified for the United States. He testified that he could not
remember whether he had ever met Lopez, but that they might have met in passing
at Garcia’s house. Bottorff also testified that he had been unaware of who
murdered Mr. Sehorne until Garcia told him that it had been “Proof” when Garcia
was cooperating with law enforcement in 2008. And although Garcia had
attempted to collect money from Bottorff after the murder, Bottorff testified that
Lopez had never once tried to collect money from him.
The United States called three jailhouse informants to testify against Lopez:
Christopher Brown, Antonio Harris, and Marquis Bruce. Brown and Harris had
both roomed with Lopez at the Pinellas County Jail, and Bruce knew Lopez from
playing basketball together. Brown testified that Lopez told him about the murder
of Mr. Sehorne and bragged about his specialty, “dome check[ing]”—that is,
shooting victims in the head. Brown also testified that Lopez told him that he had
committed the murder for a large sum of money that he never received and that he
had used a .38 revolver. Harris testified to nearly identical details of the murder,
but added that Lopez told him that he and Garcia had planned to split $100,000,
and that the payment was to come from “a lady named [Mrs. Sehorne] and her
boyfriend.” Bruce testified that he had heard Lopez claim to specialize in “dome
check[ing],” and that he had received $60,000 for his last “hit.” Counsel for Lopez
thoroughly cross-examined the informants and asked whether they would receive
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reduced sentences for testifying. He also asked two of the informants whether they
had ever read any newspaper articles about Mr. Sehorne’s murder.
The United States also called Thomas Pettis, a homicide detective. When
Detective Pettis interviewed Lopez about the Sehorne murder, Pettis asked Lopez
about his relationship with Garcia, and Lopez informed him that they were friendly
and that Garcia had worked on his car. When Pettis asked whether he had ever
participated in a murder, whether he had heard of Mrs. Sehorne or Bottorff, and
whether he had participated in the murder of Mr. Sehorne, Lopez responded in the
negative. Pettis also testified that, when he interviewed Garcia, Garcia told him
that he had hidden under a trampoline, not a burn pile, during the murder. And
Pettis testified that Garcia told him that Lopez had been present at one or two of
the meetings with Mrs. Sehorne and Bottorff.
The United States rested its case after offering several additional witnesses,
and Lopez moved for a judgment of acquittal. Fed. R. Crim. P. 29. The district
court denied the motion.
Lopez then called witnesses, including Nina Torres, a former girlfriend of
Lopez and the mother of his children. Torres testified that she read a newspaper
article about the murder, which gave the details of the murder and stated that
Lopez had committed a murder for Mrs. Sehorne for $60,000. She also testified
that she had the same cellular phone number from 2003 to 2011 and that she had
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never needed Lopez’s phone for any reason. She explained that her phone was
always in service because her mother paid her phone bill.
After Lopez rested, the jury returned a verdict of guilty on all counts. Lopez
timely renewed his motion for judgment of acquittal, Fed. R. Crim. P. 29, and
moved in the alternative for new trial, Fed. R. Crim. P. 33. Lopez contested the
sufficiency of the evidence and argued that the witnesses who testified against him
were not credible and that cell phone records proved that several phone calls
between his phone and Garcia’s phone occurred near the time of the murder. After
a hearing, the district court denied the motion.
II. STANDARDS OF REVIEW
Two standards of review cover this appeal. First, we review the denial of a
motion for judgment of acquittal de novo, and we view the evidence in the light
most favorable to the United States to determine whether a reasonable jury could
have found beyond a reasonable doubt that the defendant was guilty. United States
v. Yates, 438 F.3d 1307, 1311–12 (11th Cir. 2006) (en banc); Butcher v. United
States, 368 F.3d 1290, 1296–97 (11th Cir. 2004). This standard is comparable to
the standard we apply when a defendant challenges the sufficiency of the evidence
to support his conviction. United States v. Ellington, 348 F.3d 984, 989 (11th Cir.
2003). Second, we review the denial of a motion for new trial on the ground that
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the verdict was contrary to the weight of the evidence for clear abuse of discretion.
United States v. Martinez, 763 F.2d 1297, 1312–13 (11th Cir. 1985).
III. DISCUSSION
Lopez argues that the evidence at trial was insufficient to support his
convictions and that his convictions were against the great weight of the evidence.
For the charges that Lopez used a facility of interstate commerce to commit
murder-for-hire, 18 U.S.C. § 1958(a), and conspired to use a facility of interstate
commerce to commit the murder-for-hire, id., the United States had to prove
beyond a reasonable doubt that Lopez did or conspired to use or cause another to
use any facility of interstate or foreign commerce with the intent that a murder be
committed as consideration for a promise or agreement to pay anything of
pecuniary value, id. And for the charge that Lopez knowingly used and carried a
firearm in furtherance of a murder-for-hire, 18 U.S.C. § 924(c), the United States
had to prove that Lopez committed a murder-for-hire in violation of section
1958(a) and that he used or carried a firearm in the furtherance of that crime. 18
U.S.C. § 924(c)(1)(A)(iii), (j)(1).
Lopez’s arguments fail. A reasonable jury could have found beyond a
reasonable doubt that Lopez was guilty of each count. And the district court did not
abuse its discretion when it denied his motion for a new trial.
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We will affirm the denial of a motion for a judgment of acquittal if a
reasonable jury could find that the evidence established the defendant’s guilt
beyond a reasonable doubt. United States v. Peters, 403 F.3d 1263, 1268 (11th Cir.
2005). “It is not necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilt . .
. . A jury is free to choose among the constructions of the evidence.” United States
v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (quoting United States v.
Hardy, 895 F.2d 1331, 1334 (11th Cir. 1990)). The United States may rely upon
the testimony of “an array of scoundrels, liars and brigands” because the jury is
free to disbelieve witnesses. Id. at 1325 (internal quotation marks omitted). “It is
well established that credibility determinations are the exclusive province of the
jury.” Id. (internal quotation marks and alterations omitted).
When a defendant argues that the jury based his conviction on inconsistent
or contradictory testimony, the defendant must establish that the testimony was
“incredible as a matter of law.” United States v. Flores, 572 F.3d 1254, 1263 (11th
Cir. 2009) (internal quotation marks omitted). “For testimony of a government
witness to be incredible as a matter of law, it must be unbelievable on its face,”
meaning the witness must testify to “facts that [he] physically could not have
possibly observed or events that could not have occurred under the laws of nature.”
Calderon, 127 F.3d at 1325. A witness’s testimony is not incredible as a matter of
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law even if the witness “has consistently lied in the past, engaged in various
criminal activities, [or] thought that his testimony would benefit him.” Id.Lopez complains about the credibility determinations made by the jury, but
we will not second-guess those findings. Id. For example, Lopez argues that
Garcia’s testimony had “inherent logical flaws” because a career criminal like
Garcia would not have participated in a murder for no gain, would not have chosen
a 19-year-old member of the Latin Kings to commit the murder, would not have
selected an untested 80-year-old revolver for the murder, and would not have taken
responsibility for disposing of the weapon. But it was for the jury to decide
whether these alleged flaws in Garcia’s testimony damaged his credibility at trial,
and we cannot reweigh that evidence on appeal. See Peters, 403 F.3d at 1268;
Calderon, 127 F.3d at 1325.
Lopez also argues that Garcia’s statements to Detective Pettis in 2008 that
he hid under the trampoline during the murder and that Lopez was present at
meetings with Mrs. Sehorne and Bottorff were inconsistent with his trial testimony.
But the jury was entitled to believe Garcia despite these and any other
inconsistencies. Although Garcia was less than an ideal witness, his testimony was
not “so contrary to the teaching of basic human experience” that no reasonable trier
of fact would believe it beyond a reasonable doubt. United States v. Chancey, 715
F.2d 543, 546 (11th Cir. 1983).
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Lopez makes similar arguments about documentary evidence, but the issues
he raises were for the jury to decide. Lopez contends that phone records undercut
Garcia’s testimony that the men were together that night and that a newspaper
article about the murder renders the testimony of all three jailhouse informants
unreliable. But Garcia testified that he believed Lopez had given his phone to
Torres, and the jury was entitled to credit his testimony. In addition, two of the
jailhouse informants testified that they did not ordinarily read the newspaper and
that they had not read any articles about Lopez, and Lopez’s attorney failed to ask
the third informant, Bruce, whether he had read the newspaper article. The jury
again was entitled to believe the informants. See Peters, 403 F.3d at 1268.
The evidence that the United States presented at trial was more than
sufficient to prove Lopez’s guilt. Garcia testified in great detail about his
relationship with Lopez and how the murder took place. Three jailhouse
informants testified that Lopez bragged about his crime and how he “dome
check[ed]” people and earned money for murders. Detective Pettis testified that
Lopez misrepresented the extent of his relationship with Garcia. And Garcia
informed Mrs. Sehorne and Bottorff that “Proof” had committed the murder. Based
on this evidence, a reasonable jury could have found beyond a reasonable doubt
that Lopez was guilty. See Butcher, 368 F.3d at 1296–97. None of the evidence
presented at trial was “incredible as a matter of law.” Flores, 572 F.3d at 1263.
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We also conclude that the district court did not clearly abuse its discretion
when it denied Lopez’s motion for a new trial. Motions for new trial are
disfavored, and we have directed that district courts grant them “only in those
really exceptional cases,” when “[t]he evidence . . . preponderate[s] heavily against
the verdict, such that it would be a miscarriage of justice to let the verdict stand.”
Martinez, 763 F.2d at 1313 (internal quotation marks omitted). We agree with the
United States that “this is not one of those exceptional cases” in which we should
permit a new trial. The district court did not clearly abuse its discretion when it
concluded that the verdict was not contrary to the great weight of evidence.
IV. CONCLUSION
We AFFIRM the convictions of Lopez.
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