United States v. Diaz

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 17, 2001
No. 99-4166
THOMAS K. KAHN
CLERK
D.C. Docket No. 96-00443-1-CR-10-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLORIA MARIA DIAZ, SERGIO
ECHEVARRIA, a.k.a. Papo, a.k.a. Sylvio, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Florida
(April 17, 2001)
Before BARKETT and WILSON, Circuit Judges, and DOWD*, District Judge.
DOWD, District Judge:
I. Introduction
*
Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting
by designation.
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 l88 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
The pivotal event from a prosecutorial standpoint was the arrest of Ilvigio
Hernandez (“Ilvigio”) on January 12, l996 following the failed attempt by Echevarria,
1
The first indictment (R.15) was filed on April 22, l996 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, l997 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, l998, 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 l998.
2
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 l996. 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
3
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 also involved carjacking, and firearms were used in all three
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.
4
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.
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/~efunmoyiwa/ochanetold.html (last visited February 20, 2001).
5
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 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
6
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
7
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).
8
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,
9
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
10
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
11
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
12
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
13
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
14
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.).
15
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
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).
16
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
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.
17
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 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).
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.
18
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
19
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
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.).
20
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.
21
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 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
11
The government dismissed Counts II and III as to Lopez during the Rule 29 process. See
R.430, at 3289–90.
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.
22
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
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.
23
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 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
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.
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.
24
$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.
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.
25
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, 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
26
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 (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
27
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 42428
(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, 120 S.Ct. 323(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
29
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
30
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
31
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,
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.
32
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, not hearsay.21 The
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
33
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
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 (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.
34
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 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
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.
35
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,
24
These companies included, inter alia, Aetna, Ladd Corp., and Unisys.
36
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 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.
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).
37
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.
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.
38
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
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
39
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.
40
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
27
Although Negrin was indicted on Counts VII and IX, he pled guilty before the trial for
appellants began.
41
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
42
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 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.
43
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
44
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.
45
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
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.
46
Rule 29 motion without any 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
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.
47
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(1946).36
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 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
48
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 (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
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.
49
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 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
38
See R.430, at 3369.
39
However, such judicial declaration does not constitute a substitute for proof of the required
interstate commerce nexus.
50
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
51
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
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
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 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).
52
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
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
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.
53
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(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. 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.
54
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.
55
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
56
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
57
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).
58
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 (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
59
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.
60
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 XI (for the
43
The Court notes, however, that all appellants adopted the arguments raised by their co-
appellants.
61
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 (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
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.
62
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 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
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).
63
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.
64
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.
47
Lopez also makes a similar argument. In view of our decision vacating the Lopez
convictions, we need not address Lopez’s claim.
65
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)).
66
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.
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.
67
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,
68
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
69
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
70
(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.
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 (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
71
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
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.
72
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 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 (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
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 responded. (Id.). A mistrial was never requested. Accordingly, there is no denial of a
motion for mistrial for this Court to review.
73
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
74
when Martin originally testified, he never explicitly referenced them. Accordingly,
we find no prejudice.
VIII. Sentencing Issues
A. Introduction
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 (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
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.
75
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, No. 00–14200, (11th Cir. decided March 14, 2001). Thus, Echevarria’s
Apprendi argument likewise has no merit.
B. Guideline Issues Raised by the Appellants52
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.
76
Echevarria, Munoz,53 Orestes Hernandez,54 and Camacho55 object to the five-
level weapon 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(1993), cert. granted, vacated by, 508 U.S. 902 (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.
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.
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.
77
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
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.
78
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
to the bank robbery which was not the basis for the 18
U.S.C. § 924(c) conviction.
79
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.
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).
80
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 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
59
See U.S. v. Gonzalez, 183 F.3d 1315, 1325–26 (11th Cir.), cert. denied, 120 S.Ct. 996(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. 1996) (stating it an error to apply
guideline enhancement in addition to statutory penalty “even if the section 924(c)(1) sentence is for
a different weapon than the weapon upon which the enhancement is predicated.”).
81
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:
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.
82
(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 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).
83
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
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
84
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 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
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.
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.
85
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
63
See Burks v. U.S., 437 U.S. 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).
86