U.S. v. Rocha
| Decision Date | 22 October 1990 |
| Docket Number | No. 89-1712,89-1712 |
| Citation | 916 F.2d 219 |
| Parties | 31 Fed. R. Evid. Serv. 712 UNITED STATES of America, Plaintiff-Appellee, v. Ruben ROCHA, Thomas Padilla, Hector Garcia-Garcia, Johnny Robert Hinojosa, and Jose Santos Gallegos, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jose Santos Gallegos, El Reno, Okl., pro se.
Larry Sauer, Austin, Tex., for defendant-appellant Padilla.
Bentley C. Kelly, III, Dallas, Tex. (Court-appointed), for defendant-appellant Hinojosa.
Stacy L. Brainin, Haynes & Boone, Dallas, Tex. (Court-appointed), for defendant-appellant Rocha.
Fred Bennett, Dallas, Tex. (Court-appointed), for defendant-appellant Garcia-Garcia.
C. Steven Matlock, Jr., Jonathan L. Snare, Jackson & Walker (Court-appointed), for defendant-appellant Gallegos.
Lynn Hastins, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before BROWN, POLITZ and JOHNSON, Circuit Judges.
Defendants-appellants Ruben Rocha ("Rocha"), Thomas Padilla ("Padilla"), Hector Garcia-Garcia ("Garcia"), Johnny Robert Hinojosa ("Hinojosa") and Jose Santos Gallegos ("Gallegos") were convicted on various federal criminal charges arising from the kidnapping of Michael Baker. All of the defendants have appealed their convictions and sentences on numerous grounds. Finding no reversible error, we affirm each defendant's conviction and sentence.
This case involves the kidnapping of seventeen year old Michael Baker ("Baker"). The events leading to the kidnapping are significant. Defendant Padilla entered into an agreement whereby Padilla would deliver thirty (30) kilos of cocaine to Baker's uncle, Tony Rodriguez ("Rodriguez"), in Michigan. In return, Rodriguez agreed to pay Padilla for the cocaine from the proceeds of the cocaine sales. In November of 1988, Padilla delivered the cocaine to Rodriguez. However, Rodriguez found that he was unable to sell the cocaine at a price sufficient to cover the amount he owed to Padilla. To avoid Padilla, Rodriguez disappeared.
As the weeks passed without word from Rodriguez, Padilla made repeated telephone calls and visits to Bernice English ("English"), Rodriguez's sister and Baker's mother. At one point, Padilla threatened to hold English until Rodriguez paid his debt. English was frightened enough that she moved herself and her three younger children to California in January of 1989. Baker begged his mother to allow him to stay in Michigan to complete his senior year of high school. English acquiesced but admonished Baker to be careful of Padilla. English rented her River Rouge, Michigan, home to friends, and Baker went to live with his grandfather near Detroit.
On March 16, 1989, Baker drove to his old home in River Rouge, Michigan, to pick up mail. Baker retrieved the mail from inside the residence, and then returned to sit in his car which he had parked in the driveway. As Baker was sorting through the mail, Padilla and defendant Hinojosa drove up in a rented Toyota, blocking Baker's car. Padilla demanded to know where he could find Rodriguez, but Baker claimed he did not know. Promising to leave Baker alone if Baker would show Padilla the location of his grandfather's house, Padilla convinced Baker to get into the Toyota. As a further incentive, Padilla pointed to two vehicles parked down the street and threatened that if Baker refused to go with Padilla, the Colombians inside those two cars would capture and harm Baker. Baker believed Padilla's threats and reluctantly assented.
Once Baker climbed into the Toyota with Padilla and Hinojosa, Padilla refused to take Baker to his grandfather's house. Padilla stated that Baker was going to Texas with them until Padilla could contact Rodriguez. Padilla and Hinojosa took Baker to a motel room where Padilla and Hinojosa gathered their belongings, including a gun which Hinojosa retrieved from a ceiling panel. Padilla and Hinojosa then drove Baker across the Michigan border en route to Texas.
During the trip to Texas, Padilla stopped several times to make telephone calls to California in an attempt to contact Rodriguez. After eliciting English's telephone number from Baker, Padilla called English to inform her that he had captured Baker. Padilla stated that he would release Baker unharmed if Rodriguez would contact him. English relayed this information to Rodriguez, who immediately went to English's house to await a telephone call from Padilla. When Padilla called, Padilla told Rodriguez to fly to Texas and bring the money for the cocaine. If Rodriguez didn't show up with the money, Padilla threatened to kill Baker. After this telephone call, Rodriguez contacted federal authorities. On the morning of March 18, 1989, Rodriguez flew to Dallas where Federal Bureau of Investigation ("FBI") agents met him. The agents checked Rodriguez into a room at the Marriott Hotel and set up surveillance.
Meanwhile, Padilla, Hinojosa and Baker had arrived in Dallas, Texas, on the evening of March 17, 1989. Upon their arrival, Padilla dropped off Hinojosa and picked up defendant Rocha. Padilla and Rocha took Baker to the Value Inn Motel in Arlington, Texas, and Rocha checked them into a motel room. Padilla went away for a few hours leaving Rocha alone with Baker. When Padilla later returned, he brought defendant Gallegos and an unidentified male with him. These men confined Baker inside the motel room throughout the night.
On the morning of March 18, 1989, Rodriguez attempted to contact Padilla by calling Padilla's beeper number and, upon instructions from the FBI, entered the telephone number to the FBI hello phone. 1 Padilla called several times to set up a meeting with Rodriguez. During two telephone calls, Padilla told Rodriguez to wait for a call from defendant Garcia regarding the exchange. Also, Padilla repeatedly questioned Rodriguez about Rodriguez's hotel room number, but on instructions from the FBI, Rodriguez tried to be evasive. At first, Rodriguez gave only a partial room number of 44. 2 During a later telephone call, Padilla persisted and Rodriguez finally revealed that the correct number was 448.
At some point in the early afternoon on March 18, Padilla gave certain directions to Rocha, Gallegos and an unidentified man. Baker testified that he thought Padilla gave the three men Rodriguez's room number at the Marriott Hotel and directed them to go meet Rodriguez. Rocha, Gallegos and the third man left the Value Inn while Padilla remained with Baker. Throughout the afternoon, Padilla drove Baker around the area. Each time Padilla's beeper sounded, Padilla made a telephone call. A few hours later, Padilla stopped at Hinojosa's apartment. As Hinojosa approached the car, Padilla yelled at Hinojosa to "get the throwaway" 3 and made a hand gesture imitating a gun. Hinojosa went into the apartment and returned with a gun, placing it inside his boot. While driving away, Padilla and Hinojosa agreed that Hinojosa would leave Padilla and Baker at a restaurant and then go to Padilla's house to retrieve another gun. Once Hinojosa completed this task, Padilla drove Hinojosa and Baker to meet the three men that Padilla dispatched from the Value Inn earlier--Rocha, Gallegos and the unidentified man. Hinojosa concealed the second gun under a shirt, and joined the other three already seated in a brown Lincoln Continental.
A short time after 4:00 p.m., five calls were made to the hello phone within a short period of time. 4 After receiving information that these five calls originated from a telephone in the basement of the Marriott Hotel, an agent was dispatched to investigate. The agent observed two individuals at a telephone: one, later identified as Rocha, and another, later identified as Gallegos. The agent noticed that the two individuals would converse and then the first individual (Rocha) would speak into the telephone. The agent left the area and told other agents that he thought one of the individuals he observed might be Baker. In an attempt to ascertain whether the individual was indeed Baker, agents sent Rodriguez to the basement with instructions to walk casually by the individuals and to give a designated signal if Baker was present. Rodriguez did not give the signal and left the area. Rocha and Gallegos, apparently noticing both Rodriguez and the agents, proceeded to quickly leave the basement. The agents, suspecting that Rocha and Gallegos might notify Padilla, arrested them as they attempted to drive away in the brown Lincoln Continental. A search of the vehicle later revealed a loaded Smith & Wesson 9 millimeter semiautomatic handgun beneath Gallegos' seat and a loaded Smith & Wesson .38 caliber revolver underneath Rocha's seat.
Except for his brief trip to the basement, Rodriguez spent most of the afternoon anxiously waiting for Garcia's call. When Garcia finally telephoned, he mentioned that he had not seen Baker, but he told Rodriguez to bring Padilla's money to a local mall. As directed by Garcia, Rodriguez met Garcia at the Forum 303 Mall. During the ensuing conversation, Garcia stated that he would tell Padilla he had seen the money and "guaranteed" that Baker would be released. Garcia told Rodriguez to return to the mall in an hour and Baker would be there. Garcia and Rodriguez then left the mall. Rodriguez returned to the mall later to wait for Garcia or Baker. After just a few minutes, FBI agents told Rodriguez that Baker was free. Although the record is not clear, it appears that shortly after Garcia's meeting with Rodriguez, either Garcia or someone with Garcia alerted Padilla to the investigation. Padilla responded by releasing Baker and leaving the area. All five defendants were subsequently arrested.
A grand jury indicted the defendants on a number of offenses:
Count 1--conspiracy to kidnap and hold Baker for ransom in violation of 18...
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