U.S. v. Lopez

• Citation: 649 F.3d 1222,23 Fla. L. Weekly Fed. C 281
• Decision Date: 16 August 2011
• Docket Number: No. 09–12802.,09–12802.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Liana Lee LOPEZ, Danny Varela, a.k.a. D.V., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

649 F.3d 1222

23 Fla. L. Weekly Fed. C 281

UNITED STATES of America, Plaintiff-Appellee,

v.Liana Lee LOPEZ, Danny Varela, a.k.a. D.

v., Defendants-Appellants.

No. 09–12802.

United States Court of Appeals, Eleventh Circuit.

Aug. 16, 2011.

Gregg S. Lerman (Court–Appointed), Robert Scott Gershman (Court–Appointed), West Palm Beach, FL, for Appellants.Evelio J. Yera, Anne R. Schultz, Asst. U.S. Atty., U.S. Attorney's Office, Miami, FL, for Appellee.Appeals from the United States District Court for the Southern District of Florida.Before CARNES, KRAVITCH, and SILER,^* Circuit Judges.CARNES, Circuit Judge:

This appeal stems from a violent drug conspiracy in South Florida that involved a number of criminals, most of whom have aliases or nicknames. The four whose joint trial led to this appeal were Daniel “D.V.” Varela, Liana “The Negra” Lopez, Ricardo “Rick” Sanchez, and Daniel “Homer” Troya. Showing a keen appreciation for their own character, they referred to the townhouse where they lived as the “Thug Mansion.” During their crime wave two of the self-styled thugs, Troya and Sanchez, carjacked a fellow drug dealer and shot him to death. What would have been unfortunate became triply tragic when they also gunned down the drug dealer's wife and their two children, ages three and four. Troya and Sanchez left all four bodies on the side of the road.

The ensuing police investigation led to the Thug Mansion, which was located in a gated residential community. Officers executed a search warrant there and found evidence of the murder and the on-going drug conspiracy. An indictment and two superseding indictments followed, and then a trial at which the four defendants were convicted on all counts. Lopez and Varela, who brought this appeal, raise several issues, the primary one being that they should not have been jointly tried with Troya and Sanchez, who committed the murders. (Sanchez and Troya were convicted of those murders and sentenced to death, and they have filed appeals that are proceeding separately from this one.)

I.

On May 10, 2006, an officer stopped Lopez, who was driving a white Cadillac with a suspicious looking tag, a temporary one held on with electrical tape. Before Lopez pulled over to the curb the officer saw her bend down to her right, appearing to fiddle with something on the passenger side floorboard. During a search following the stop the officers found two kilograms of powder cocaine and more than $14,000 cash in a black bag on the passenger side floorboard. Later, officers discovered Varela's fingerprint on the car's temporary tag.

Lopez often made rounds on behalf of Varela to deliver drugs to customers and collect money from customers who bought drugs on credit. She later told Kevin Vetere, a government witness who lived with the defendants at the Thug Mansion, that was why she had the cocaine and cash in her car on the day the officers stopped her.

A month later, on June 10, 2006, officers stopped Varela while he was driving a black Chevy Lumina and Troya was riding in the backseat. The officers made the stop in part because the car had abruptly turned around within sight of a police checkpoint. They discovered two handguns in a hidden compartment in the middle of the car's front bench seat, marijuana residue elsewhere in the car, and more than $1,300 cash in Varela's pockets. The officers arrested Troya for possession of marijuana and Varela for that charge and for being a felon in possession of a firearm.

Another month later, on July 10, 2006, an officer saw a white Ford Taurus with a suspicious temporary tag held onto the car with electrical tape and similar in appearance to the tag that was on Lopez's car two months earlier. The officer attempted to pull over the Taurus after receiving a dispatcher's report that the car's tag was stolen.¹ Sanchez, the driver of the Taurus, attempted to elude the officer but lost control of the car and crashed into a tree. He fled the car with half a kilo of cocaine in a shoebox but the cocaine spilled onto the ground when he stumbled while running away. Police caught up with Sanchez nearby and arrested him.

Despite those arrests, all four members of this gang were soon back out on the streets. That same summer, a fellow drug dealer, Jose “Lou” Escobedo, his wife Yessica, and their two sons, a four-year-old and a three-year-old, along with Escobedo's cousin Crystal called on Varela and Lopez at their residence in South Florida at the time, a house they called the “Pimp Plaza.” Escobedo was involved in narcotics and transported drugs from Texas and Mexico to Florida. The Escobedo family moved to Florida about three weeks after Escobedo had met Varela in Texas. The two men were seen together in Texas and in Florida on multiple occasions.

On the visit to the Pimp Plaza with the Escobedos, Crystal saw large amounts of money being counted in the kitchen in Lopez's presence. Not wanting the impressionable Escobedo youngsters to see what was going on, she took them upstairs. The scenery was not any better up there where she saw about 50 handguns on a bed, and she brought the children back downstairs. When Crystal questioned Sanchez about the presence of all of those guns, he told her that there were more in the closet of the other bedroom.

During the gang's time at the Pimp Plaza, Lopez sometimes carried a shotgun around the house because of a previous robbery. The robbery had put her on edge because the perpetrators had pistol whipped Escobedo and held a gun to his head until Lopez told them where the money and the cocaine were stashed in the Pimp Plaza. Those robbers ran off with some handguns, with about $100,000 cash they found in a bag, and with a kilo of cocaine that had been in a laundry basket. There was more cocaine in the laundry basket, but the robbers had not dug deep enough into the gang's dirty laundry to find it.

Soon after that robbery, Lopez and Varela packed up and moved the gang from the Pimp Plaza to the Thug Mansion. Varela rented the place, paying cash for rent and for the security deposit. Varela and Lopez shared the master bedroom. Sanchez and Troya each had their own bedroom, as did Jose Gutierrez. ² Vetere slept on an air mattress on the dining room floor.

Around that time, Lopez frequented strip clubs and gave the strippers yellow baggies filled with cocaine. When she ran out of baggies, Varela would send her back to the Thug Mansion for more. Lopez also delivered brown paper bags, cereal boxes, and shoeboxes containing cocaine to various individuals, including on at least one occasion to Escobedo. On another occasion Elvia Castillo, a government witness and Lopez's friend, saw Varela carrying “[a] little white brick” and heard him ask Lopez for acetone—a chemical used to dilute cocaine in order to produce for sale a larger amount of less-pure cocaine.

After an argument at a club, Varela asked someone who was with Castillo to go to the Thug Mansion for “the little chopper,” a firearm. Castillo went along and at the Thug Mansion she saw Lopez go into the master bedroom closet, get the firearm, and wrap it up in a shirt to be taken to Varela. Lopez once asked Castillo not to sit in a bean bag chair because Lopez had just filled the bag with “bricks”—the gang's slang for kilos of cocaine. Castillo also heard Lopez, after ending a phone call, say that someone needed an “Xbox,” which was more of the gang's slang for kilos of cocaine. Varela sold narcotics to Mario Calderon, a government witness and former narcotics customer of his, from late 2005 until Calderon's arrest in July 2006. They did a lot of drug business together during that time span; Varela sold Calderon an average of three kilos a week. Sanchez delivered some of the drugs to Calderon for Varela, and Lopez began participating in some of those deals in early 2006, occasionally making deliveries. On one occasion Calderon dealt directly with Lopez. Calderon estimated that he had purchased over 80 kilos of cocaine from Varela, Lopez, and Sanchez during the course of their deals together.

Late in the afternoon of October 12, 2006, Troya and Sanchez climbed into the gang's burgundy van, and Vetere tried to join them and tag along for the ride as he had done before on other drug-related business.³ That particular time, however, he was told he could not go along. Varela confirmed over the phone to Troya that Vetere was not to be invited on that particular trip.

Cell phone evidence showed that in the evening hours of October 12, 2006 and early morning hours of October 13, 2006, multiple calls were made between Sanchez's cell phone and Escobedo's cell phone.⁴ Cell phone tower records showed that Sanchez's, Troya's, and Escobedo's phones were all traveling north up the I–95 corridor along Florida's east coast during the evening of October 12. A highway patrol officer also saw the burgundy van heading north on I–95 just south of Daytona Beach around 9:00 p.m. and reported the van's tag as a part of his routine patrol. The cell phone location pattern changed around midnight on October 12, showing that Troya's, Sanchez's, and Escobedo's phones were headed in the opposite direction, south along Florida's east coast.

Toll booth security cameras and toll tickets showed that Escobedo's black Jeep Cherokee and then the burgundy van entered the Florida Turnpike one after the other at the Fort Pierce exit at 2:18 a.m. on October 13. About six minutes later, two series of popping noises that sounded like gunfire awoke a couple who lived near the turnpike in the vicinity of where the bodies of the Escobedo family were later discovered. Three minutes after that, at 2:27 a.m., a call was made from Troya's cell phone to Sanchez's cell phone. That was the first call between those two phones all night.

Within a few minutes of that call and just before 2:30 a.m., calls were made from both Troya's and Sanchez's cell phones to Varela's. Toll booth camera footage and toll tickets showed...