United States v. Diaz

248 F.3d 1065

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 17, 2001
• Docket: 99-4166
• Status: Published

Opinion

[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 424

28 (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

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).