U.S. v. Latorre
| Decision Date | 02 October 1990 |
| Docket Number | FERRAS-LAG,D,Nos. 88-1241,MARRERO-FIGUERO,s. 88-1241 |
| Citation | 922 F.2d 1 |
| Parties | 31 Fed. R. Evid. Serv. 1066 UNITED STATES, Appellee, v. Jose Luis LATORRE, a/k/a "El Cano," Defendant, Appellant. UNITED STATES, Appellee, v. Carlos Ivan LATORRE, Defendant, Appellant. UNITED STATES, Appellee, v. Ramonefendant, Appellant. UNITED STATES, Appellee, v. Antonioefendant, Appellant. through 88-1244. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Benicio Sanchez Rivera, San Juan, P.R., for defendant, appellant Jose Luis Latorre.
Peter John Porrata, Old San Juan, P.R., for appellant Carlos Ivan Latorre.
Benjamin S. Waxman, with whom William R. Tunkey and Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., were on brief, for defendant, appellant Ferras-Lago.
Maria H. Sandoval, Santurce, P.R., for defendant, appellant Marrero-Figueroa.
Nina S. Goodman, Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., for Puerto Rico, was on brief, for appellee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and ATKINS, * Senior District Judge.
During the morning of June 7, 1982, a tractor trailer belonging to Francisco Fuster Medina was stolen while en route from the Atari factory in Fajardo, Puerto Rico to the shipping terminal in Canovanas. It was carrying over 49,000 Atari video game cassettes. On June 3, 1987, eight individuals were indicted for the crime on two counts: one, conspiracy to rob approximately 49,546 Atari video game cassettes Trial proceeded against five defendants: Jose Luis Latorre, a/k/a "El Cano"; Carlos Ivan Latorre; Hector Giovani Hernandez Gomez; Antonio Marrero-Figueroa; and Ramon Ferras-Lago. Hector Giovani Hernandez Gomez pled guilty during trial. Jose Latorre, Carlos Latorre and Ferras were convicted on both counts. Marrero was convicted only on count one, the conspiracy count. All four defendants have appealed. The issues raised singly or collectively are: the sufficiency of the evidence; whether the indictment should have been dismissed; the admission of evidence of other tractor trailer thefts; ineffective assistance of counsel; the prosecution of Carlos Latorre despite a plea agreement; and the jury instructions. We affirm all convictions.
with an estimated value of $1,115,965 from Atari Caribe Inc. in violation of 18 U.S.C. Sec. 1951(a), (b)(1) and (b)(3); and two, commission of a robbery in violation of 18 U.S.C. Sec. 1951(a), (b)(1) and (b)(3). 1 Count two also alleged a violation of 18 U.S.C. Sec. 2
We review the evidence in the light most favorable to the government, including all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found defendants guilty beyond a reasonable doubt. United States v. Blair, 886 F.2d 477, 478 (1st Cir.1989).
The hijacking was carried out by a gang headed by Jose Luis Latorre. Four of the witnesses who testified had been members of the gang and three of them had been directly involved in the June 7 robbery. 2 In addition, there was testimony by one of the indicted defendants, Giovani, who pled guilty during the trial. The testimony of these witnesses was substantiated and corroborated by independent witnesses and circumstantial evidence.
Planning for the robbery started in May of 1982. One of the members of the gang, Edgardo Correa Davila, a/k/a Eggy, worked part time as a truck driver for the trucking company that hauled video game cassettes from the Atari factory in Fajardo to Canovanas for shipment to the United States. 3 Eggy, therefore, was able to advise Luis Latorre and Wilfredo Rivera Diaz as to the date and time when a trailer load of cassettes would leave the Atari factory for the shipping terminal. Rivera Diaz was not indicted and testified at the trial. He was a member of the hijacking gang; his chief function was to find buyers for the stolen merchandise. Two preliminary steps had to be taken before the robbery could take place: a buyer for the stolen merchandise had to be found, and a place where the Giovani was put in charge of finding a place where the cassettes would be unloaded from the stolen van. He contacted a friend, defendant Marrero, who ran an automobile glass business and had a warehouse. Giovani told Marrero that he would like to use his warehouse to unload a trailer van of Ataris that was to be stolen. A price of $3,000 was agreed upon, $500 of which would be kept by Giovani. Marrero insisted that his warehouse could be used only for unloading the stolen trailer, that the merchandise could not be stored there.
stolen trailer could be unloaded had to be located.
Defendant Ferras agreed to be one of the principal buyers. Ferras met with Jose Latorre and Rivera Diaz prior to the robbery and said "he would swallow a van full of Pac-Man." He further stated to Latorre and Rivera Diaz that there would be no problem as to price for a van full of Atari cassettes. It was then definitely decided that the Latorre gang would hijack a trailer loaded with Pac-Man Atari cassettes.
After two false starts, due to the failure of the trailer to leave the factory as anticipated, the hijacking went forward on the morning of June 7, 1982. Those who did the hijacking were the Latorre brothers, Jose and Carlos, Jorge Derieux Journet, Edgardo Correa Davila, a/k/a Eggy, and Cesar Robles Gonzalez, a/k/a Jiggity. Derieux Journet and Lopez Cabrera were witnesses at the trial. Derieux and Lopez were assigned to a small white car, a Champ, that resembled a police cruiser. The car was equipped with a siren. Both men were given a police badge and a handgun. Lopez also was given a radio phone, similar to the kind the police used. The plan was as follows: Derieux would drive and Lopez would occupy the passenger seat. They would follow the tractor trailer and when they neared a suitable site for the robbery, the siren would be sounded. The white car would then draw abreast of the truck and signal the driver to stop. Lopez would display the badge and the radio phone so that the truck driver would think he was being stopped by the police. The other three robbers, the Latorre brothers and Robles Gonzalez, would follow in another car.
All went according to plan. The driver of the hijacked vehicle testified that he heard what he thought was a police siren. Then, what apparently was a white police cruiser pulled alongside the truck. After seeing the badges and what looked like a police radio phone, the truck driver pulled over to the side of the road and stopped. He got out of the truck and was taking his license out of his pocket when a gun was pointed at him and he was ordered to get in the back of the white car. After he had done so, he was told to lie face down on the floor and warned that if he tried to look at the faces of his captors "he would easily get killed." After being held prisoner for about two hours, the driver was released and reported the hijacking to Fuster, owner of the truck. Fuster notified the police.
Meanwhile, the other three robbers took the trailer to the warehouse of defendant Marrero. Present at the warehouse, in addition to the Latorre brothers and Robles Gonzalez, were Giovani, defendant Marrero and someone called "Georgi." The cassettes were stacked on wooden pallets which were wrapped in plastic. Each plastic-wrapped bundle had color crayon markings on it. Giovani had furnished an Econoline van to which the Atari cassettes were transferred. As the transfer was made, the plastic wrappings were pulled off the pallets, and the plastic and pallets were discarded on the ground outside the warehouse.
When Carlos Latorre examined the shipping documents identifying the packaged cassettes, he discovered that there were no Pac-Man cassettes in the shipment. This caused some of the potential buyers to back away from purchasing the cassettes. Defendant Ferras was no longer interested in buying the bulk of the shipment, but he did buy 28,500 cassettes at an agreed price of $4 each, for a total of $114,000. Ferras, however, actually paid only $100,000. There were some small purchases by other buyers including Giovani. Thus, the million dollar heist contemplated by the Latorre gang became in fact a $100,000 bust.
This evidence, which in the main is an amalgam of the testimony of participants in the conspiracy and robbery, is more than sufficient to sustain the convictions of all appellants. We must add, however, that in addition to being corroborated by wives, mistresses and acquaintances of the defendants, the testimony was confirmed by a chain of evidence that was substantially immune from credibility attack.
After the owner of the stolen truck, Francisco Fuster, notified the police, he called a friend in the trucking business, Manny Rodriguez Roig, and told him that one of his tractor trailers had been stolen, described it, and asked him to call if he saw it. Defendant Marrero had contracted with a trucking company, the Los Vaqueros Cooperative, to do all the trucking for him. On June 7, Pedro Santiago Velazquez, a truck driver employed by Los Vaqueros, picked up a trailer loaded with automotive glass for delivery to Marrero's glass shop. When he got there, he parked in the front, partially on the sidewalk, and went into the glass shop. He was told to take the van to Marrero's warehouse, which was located some distance away. As he got into his truck, Rodriquez Roig, whom he knew, came by and told him that a truck and trailer had been stolen from Fuster. The truck and trailer were described to him. Santiago then drove to Marrero's warehouse where he saw a trailer that fitted the description he had been given of the one that had been hijacked. The next...
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