U.S. v. Hernandez, 96-4433
| Decision Date | 21 May 1998 |
| Docket Number | No. 96-4433,96-4433 |
| Citation | 141 F.3d 1042 |
| Parties | 11 Fla. L. Weekly Fed. C 1419 UNITED STATES of America, Plaintiff-Appellee, v. Walter HERNANDEZ, Sr., Antonio Hernandez, Sr., et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Sally Gross, Miami, FL, for Walter, Jr.
Nancy Wear, Coral Gables, FL, for Wilfredo.
Sheryl J. Lowenthal, Coral Gables, FL, for Antonio, Sr.
Eric M. Cohen, Miami, FL, for Antonio, Jr.
Marisa Tinkler Mendez, Coral Gables, FL, for Walter, Sr.
Nina Stillman Mandel, Anne Ruth Schultz, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before ANDERSON and CARNES, Circuit Judges, and O'KELLEY *, Senior District Judge.
After a five-week trial, a jury convicted five members of the Hernandez family of various charges related to the 1989 murder-for-hire of the night watchman at their family business' warehouse, the burning of that warehouse, and the ensuing fraud on the warehouse's insurer. The district court sentenced three of them to life imprisonment as a result of their convictions for the murder-for-hire, and sentenced the other two to ten years imprisonment because of their roles in the conspiracy to commit the murder-for-hire.
On appeal, the Hernandezes raise numerous claims. However, only the following three claims warrant any discussion: (1) Walter Hernandez, Jr.'s challenge to his conviction on the grounds that his Sixth Amendment Confrontation Clause and Compulsory Process Clause rights were violated when the district court refused to force his father, Walter Hernandez, Sr. to retake the witness stand; (2) Walter Hernandez, Jr.'s challenge to his sentence, in which he contends that the district court had insufficient evidence to conclude that he was guilty of the conspiracy to commit murder-for-hire, and therefore, under § 1B1.2(d) of the United States Sentencing Guidelines, the district court should have considered arson to be his underlying offense; and (3) Antonio Hernandez, Jr., Antonio Hernandez, Sr., and Walter Hernandez, Sr.'s challenge to their convictions for murder-for-hire, in which they contend that the government did not prove that the murder was committed in return for anything of pecuniary value.
We hold that any error the district court may have made by refusing to allow Walter Hernandez, Jr. to present further testimony from Walter Hernandez, Sr. was harmless beyond a reasonable doubt, and therefore affirm his conviction. We agree with Walter Hernandez, Jr.'s contention that there was insufficient evidence to support the district court's finding that he was guilty of conspiracy to commit murder-for-hire. We therefore vacate his sentence and remand to the district court for resentencing. Finally, we conclude that because there was testimony that Antonio Hernandez, Sr. and Antonio Hernandez, Jr. committed the murder with the expectation that Walter Hernandez, Sr. would pay them for that murder, there was evidence to support the convictions of all three of them for murder-for-hire.
The facts of this case weave a tale of murder, arson and deceit. In the fall of 1989, Walter Hernandez, Sr.'s ("Walter Sr.") business, Optical Manufacturing Corporation ("OMC"), was in poor financial condition. Over the prior two years, OMC had "bounced" checks in the amount of approximately $215,000. The Internal Revenue Service put a lien on OMC for nonpayment of payroll taxes. In the spring of 1989, OMC's insurance policy and alarm system were canceled due to its failure to pay bills. By September 1989, OMC owed more than $13,000 in back rent and its landlord began eviction proceedings. OMC was not only down, but very nearly out. It was essentially dormant, desperately needing capital to continue its operations.
Despite its poor financial condition, OMC began taking steps to protect its "assets." On October 26, 1989, OMC purchased a $1.5 million insurance policy on its business and its inventory, another $300,000 in liability insurance, and $150,000 in business interruption insurance, all from Orion Insurance ("Orion"). That fall, OMC also employed Orlando Hernandez ("Orlando") as a night watchman. Orlando was the one Hernandez who was not related to the others, which would prove to be a fatal distinction. Orlando took up residence on the second floor of the OMC warehouse which, like he, was doomed.
Soon after Orlando was hired, William Hernandez ("William"), one of Walter Sr.'s sons, came to the Maryland home of Lerida Baldo Tappan to meet with Antonio Hernandez, Sr. ("Antonio Sr.") and Antonio Hernandez, Jr. ("Antonio Jr."), Walter Sr.'s brother and nephew, respectively. At that meeting, and in Ms. Tappan's presence, Antonio Sr. told William and Antonio Jr. that Walter Sr. had asked them to go to Miami to "do a job." The "job," as Antonio Sr. revealed, involved blowing up a warehouse in Miami and getting rid of the man who was taking care of it. Antonio Sr. told the others that they would get a good amount of money in return for completing the "job." Antonio Sr. then asked Ms. Tappan if he could borrow her car to drive down to Miami. Instead of just letting him borrow the car, she accompanied him in it to Miami.
Soon thereafter, William stole a pickup truck and attached Ms. Tappan's old license plates to it. Antonio Sr. obtained some plumbing pipes and gave them to Antonio Jr. and William, who put them in a tool box in the back of the truck. Antonio Jr. and William took one of Ms. Tappan's two cellular phones with them in the truck, while Antonio Sr. and Ms. Tappan took the other one in Ms. Tappan's car. The four drove to Miami over the course of the next three days, making frequent cellular phone calls between the car and the truck.
Upon their arrival in Miami, Antonio Sr. and Ms. Tappan went to the warehouse and "checked it out." While they were there, Antonio Sr. introduced Ms. Tappan to Orlando. They proceeded to Walter Sr.'s home in Hialeah, Florida, where they stayed with Walter Sr., Walter Jr., Wilfredo Hernandez ("Wilfredo")--Walter's third son--, William, and Antonio Jr. For several days, Ms. Tappan and Antonio Sr. stayed in Walter Sr.'s house, sharing a bedroom facing the back of the house.
The Hernandez clan worked out the logistics of Orlando's murder at Walter Sr.'s house. During discussions, Walter Sr. explained that Orlando had too much information--he "knew too much"--and that Orlando had talked to too many people. Antonio Sr. said that they had to get rid of him. Antonio Jr., Walter Jr., Wilfredo and William were also parties to these conversations, although it is unclear what role each played in the discussion. At one point, Antonio Jr. and William said they were "going to shoot Orlando up further than the moon." Wilfredo later told Ms. Tappan that he had to kill Orlando in order to prove to his father that he was a man.
On the night of November 26, 1989, Antonio Jr., Wilfredo, and William left Walter Sr.'s house in the pickup truck. Late that night, they returned. They drove around to the back of Walter Sr.'s house, screeched the truck's tires, and started to holler. Walter Sr., Walter Jr., and Antonio Sr. were outside the house and told them to quiet down. Wilfredo, Antonio Jr., and William then proceeded to boast about how they had killed Orlando at the warehouse, saying that they had "shot him up." They also described the amount of blood and mess the shooting had caused at the warehouse. Ms. Tappan heard that boasting from her room.
After an hour, Antonio Sr. came into the bedroom he shared with Ms. Tappan. He pulled a gun from his boot, saying "if you heard anything or seen anything tonight, you better keep your mouth shut; if not, I am going to kill you and your family." Realizing that in the circumstances discretion was better than candor, Ms. Tappan told Antonio Sr. that she had been asleep and had not heard anything.
The next morning, Wilfredo called the police from the OMC warehouse. When the police arrived, they found that the front glass door was locked from the inside and that an exterior metal door was open. They found pry marks in the door jam that appeared to have been made to create the look of a forced entry. The police found Orlando's body in the rear of the building, lying face down on the floor. A trail of blood led from a set of interior doors to the body. There were no signs of a struggle. Orlando's body had five gunshot wounds in it.
After Orlando's murder, the Hernandez clan had several discussions about blowing up and burning the OMC business; Ms. Tappan overheard their planning. Walter Sr. asked William if he had brought the supplies from Maryland--the pipes--and William confirmed that he had the "supplies" in the back of the stolen pickup. The motive for the fire bombing, which came out during these discussions, was that there were too many things that they had to get rid of, and Walter Sr. badly needed the insurance money to pay his bills. The Hernandezes agreed that Wilfredo, William, Antonio Jr., Walter Jr., and Antonio Sr. would destroy the warehouse. Before the group set their plan in motion, Ms. Tappan left Miami and was not privy to any further conversations. Antonio Sr., however, insisted that he keep Ms. Tappan's car in Miami and said that he would return it when he was finished with "the job that he had to do at the warehouse."
On December 3, 1989, three pipe bombs exploded at the OMC warehouse, igniting gasoline that had been poured in it. The explosion and resulting fires caused extensive damage to the warehouse. The bombs had been placed in separate rooms on the second story and appeared to have been made of ordinary metal pipes. Burned and unburned pieces of fuse littered the areas surrounding the bombs and there was evidence that the fuses had been run from the first to the second floor.
When Antonio Sr. returned to Tappan's home in...
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