248 F.3d 1065 (11th Cir. 2001), 99-4166, United States v Diaz

Docket Nº:99-4166
Citation:248 F.3d 1065
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GLORIA MARIA DIAZ, SERGIO ECHEVARRIA, a.k.a. Papo, a.k.a. Sylvio, et al., Defendants-Appellants.
Case Date:April 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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248 F.3d 1065 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

GLORIA MARIA DIAZ, SERGIO ECHEVARRIA, a.k.a. Papo, a.k.a. Sylvio, et al., Defendants-Appellants.

No. 99-4166

IN THE UNITED STATES COURT OF Appeals, FOR THE ELEVENTH CIRCUIT

April 17, 2001

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Appeals from the United States District Court for the Southern District of Florida, D.C. Docket No. 96-00443-1-CR-10-ASG

Before BARKETT and WILSON, Circuit Judges, and DOWD[*], District Judge.

DOWD, District Judge:

I. Introduction

This appeal follows the conviction of the six appellants, Gloria Diaz ("Diaz"), Jose

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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, 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 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

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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.

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.

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

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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 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 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).

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,

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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...

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