United States v. Henry Wainwright

437 F. App'x 837
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 15, 2011
Docket10-14245
StatusUnpublished

This text of 437 F. App'x 837 (United States v. Henry Wainwright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Henry Wainwright, 437 F. App'x 837 (11th Cir. 2011).

Opinion

*839 PER CURIAM:

Defendant-appellant Henry Wainwright (“Wainwright”) appeals his convictions for (1) conspiracy to commit Hobbs Act robbery; (2) attempt to commit Hobbs Act robbery; (3) conspiracy to use and possess a firearm in relation to the robbery; (4) carrying and possessing a firearm in relation to a crime of violence; and (5) being a felon in possession of a firearm. On appeal, Wainwright contends that the district court erred in: (1) not granting his motions for a mistrial based on the prosecutor’s comments; and (2) not granting his motion for acquittal based on sufficiency of the evidence. After review of the briefs and the record, we affirm all of Wainwright’s convictions.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Indictment

On November 17, 2009, the grand jury returned a Superseding Indictment charging Wainwright (and his co-conspirators Jay Richitelli (“Richitelli”) and Niegel Smith (“Smith”)) with (1) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); (2) attempt to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 2); (3) conspiracy to carry and possess a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), (o) (Count 3); and (4) carrying and possessing a firearm during a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 4). The Superseding Indictment further charged Ri-chitelli and Wainwright individually with being felons in possession of a firearm, in violation of 18 U.S.C. §§ 2, 922(g)(1), 924(e) (Count 6). 1 Wainwright pled not guilty and proceeded to a jury trial.

B. Trial Evidence

Because Wainwright challenges the sufficiency of the evidence, we review the trial record in great detail. In its case in chief, the government’s witnesses were (1) John Cherico (“Cherico”), a courier for Twin Oil Company (“Twin Oil”); (2) Michael Goldberg, a vice president at Twin Oil; (3) Detective Dean Soubasis (“Soubasis”) of the Pembroke Pines Police Department; (4) Niegel Smith (“Smith”), Wainwright’s co-conspirator; and (5) Gerard Starkey (“Starkey”), an FBI officer on the violent crime task force. Wainwright testified in his own defense. In rebuttal, the government called Shannon Jayroe (“Jayroe”), a United States Secret Service agent.

1. Courier Cherico’s Testimony

John Cherico worked as a courier for Twin Oil. Cherico’s courier duties involved going to various gas stations to determine how much gas was sold and collecting the money each lessee owed Twin Oil. He did not wear a uniform, but usually wore beige pants and a polo shirt. He drove a silver Dodge Durango owned by Twin Oil, which lacked any company markings.

In visiting gas stations, Cherico followed the same route, beginning at 10290 West Commercial Boulevard and ending at 7520 Pembroke Road. His second-to-last stop was at 1700 North University Drive, where he collected the money for two locations operated by the same owner. Cherico traveled this collection route on Tuesdays and Fridays. Cherico secured the gas station money in a safe chained to the bottom of his car’s passenger seat.

*840 On August 25, 2009, Cherico began his collections around 6:00 a.m. He spent twenty to twenty-five minutes at each stop. He was at the gas station at Taft and University (the “University station” or next-to-last station) at 8:57 a.m., as evidenced by his gas receipt. He would have arrived at his last gas station at 7520 Pembroke Road (the “Pembroke station” or last pick-up station) at approximately 9:20 a.m. Cherico did not know Wainwright or the co-defendants.

2. Detective Soubasis’s Testimony

Detective Dean Soubasis testified that he had worked at the Pembroke Pines Police Department for eighteen years, thirteen as a detective. At approximately 9:14 a.m. on August 25, 2009, Detective Soubasis was patrolling a residential area between Pembroke Road and Pines Boulevard in Broward County “because of a rash of residential and car burglaries ... in that specific area.” He was in an unmarked patrol car.

Detective Soubasis saw a Volkswagen parked suspiciously on a sidewalk near a corner residence. Looking into the car, Soubasis noticed that the passenger was wearing black clothing from the chest up and was putting on black gloves. Soubasis checked the car’s license plate, “TAZRULE,” to determine whether the car’s occupants lived in the area or if they might be planning to burglarize an area residence. Soubasis became more suspicious because he did not see any cars in the corner residence’s driveway, but he did see one in the carport. As Soubasis passed the Volkswagen and started to make a U-turn, the Volkswagen pulled out of its parked spot and drove southwest on 71st Avenue. Soubasis stopped the Volkswagen for illegally parking on the sidewalk. Soubasis also wanted to investigate why the passenger in the car was putting on black gloves and the possibility that the car’s occupants were “loitering and prowling in the area.”

As Detective Soubasis began to follow the Volkswagen to pull it over, he observed the Volkswagen turn right from 71st Avenue onto Pembroke Road without stopping at the stop sign posted at the corner. Soubasis later testified that there were seven-tenths of a mile between the house on 71st Avenue and the traffic stop location, one-half of one mile between the house and the Pembroke Road Sunoco (the final pick-up station), and two-tenths of a mile between the Pembroke Road Sunoco and the traffic stop location. Soubasis stopped the Volkswagen at 9:16 a.m.

Soubasis exited his car and asked both occupants of the Volkswagen to put their hands up. Initially, both occupants complied, but as Soubasis approached the back of the Volkswagen, the passenger put his hands down and leaned forward. Soubasis yelled twice for the passenger to put his hands back up; the passenger complied. Soubasis testified that Wainwright was the driver of the Volkswagen and made a courtroom identification of him; Smith was the passenger.

Detective Soubasis smelled marijuana from within the car. He noticed that passenger Smith had taken his gloves off and was shaking uncontrollably and sweating. Soubasis asked for Wainwright’s driver’s license, registration, and proof of insurance, but Wainwright had only his driver’s license and explained that the car belonged to his roommate. When Soubasis asked Smith and Wainwright what they were doing, Wainwright answered that they were on the way to meet their boss at a Sunoco gas station and that their boss had a paint job for them. Soubasis then advised Wainwright of his Miranda rights because Soubasis intended to ask Wainwright about (1) Wainwright’s presence “in

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Bluebook (online)
437 F. App'x 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-henry-wainwright-ca11-2011.