U.S. v. Arias-Izquierdo

• Decision Date: 22 May 2006
• Docket Number: No. 04-12034.,04-12034.
• Citation: 449 F.3d 1168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvenis ARIAS-IZQUIERDO, Eduardo Javier Mejia Morales, Neudis Infantes Hernandez, Yainer Olivares-Samon, Alexis Norneilla Morales, Miakel Guerra-Morales, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

449 F.3d 1168

UNITED STATES of America, Plaintiff-Appellee, v. Alvenis ARIAS-IZQUIERDO, Eduardo Javier Mejia Morales, Neudis Infantes Hernandez, Yainer Olivares-Samon, Alexis Norneilla Morales, Miakel Guerra-Morales, Defendants-Appellants.

No. 04-12034.

United States Court of Appeals, Eleventh Circuit.

May 22, 2006.

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Israel J. Encinosa (Court-Appointed), Israel J. Encinosa, P.A., Mauricio L. Aldazabal (Court-Appointed), Martin Alan Feigenbaum (Court-Appointed), Reemberto Diaz (Court-Appointed), Reemberto Diaz, P.A., Miami, FL, Brenda G. Bryn (Fed. Pub. Def.), Fed. Pub. Defender's Office, Fort Lauderdale, FL, Ana Maria Jhones (Court-Appointed), Coral Gables, FL, Stewart Glenn Abrams and Kathleen M. Williams, Fed. Pub. Defenders, Miami, FL, for Defendants-Appellants.

Jeanne Marie Mullenhoff, Anne R. Schultz, Asst. U.S. Atty., Suzan H. Ponzoli, Miami, FL, for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before BLACK, BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

This cases arises from the hijacking of an aircraft bound for Havana from Nueva Gerona, Cuba that was diverted to Key West, Florida. Appellants Alvenis Arias-Izquierdo, Eduardo Javier Mejia Morales, Neudis Infantes Hernandez, Yainer Olivares-Samon, Alexis Norneilla Morales, and Miakel Guerra Morales were tried on four counts pertaining to the hijacking of the plane: (1) conspiracy to commit aircraft piracy, in violation of 49 U.S.C. §§ 46502(a)(1)(A), (a)(2)(A), and 18 U.S.C. § 2 ("Count 1"); (2) aircraft piracy, in violation of 49 U.S.C. § 46502(a)(1)(A) ("Count 2"); (3) conspiracy to interfere with a flight crew, in violation of 49 U.S.C. § 46504 and 18 U.S.C. § 2 ("Count 3"); and (4) interference with a flight crew, in violation of 49 U.S.C. § 46504 ("Count 4"). Each appellant now appeals his conviction, and Hernandez, Norneilla-Morales, and Guerra Morales also appeal the sentence imposed by the district court.

I. BACKGROUND

The government presented evidence at trial demonstrating that on March 19, 2003, the six appellants boarded an Aerotaxi DC-3 aircraft¹ scheduled to fly to Havana, Cuba from Nueva Gerona, a town located on a Cuban island known as the Isle of Youth. Alexis Norneilla-Morales boarded the flight along with his wife and young child. Norneilla-Morales's cousin Mejia Morales, boarded the plane with his wife and daughter. Norneilla-Morales's brother Guerra-Morales and cousin Olivares-Samon both boarded with their wives. Hernandez and Arias-Izquierdo, neither of whom is related to Norneilla-Morales, boarded alone.

The government presented evidence that several of the appellants entered the cockpit by knocking down the door, and that Norneilla-Morales held a knife to the pilot's throat and told him to head north to Miami. The government presented evidence that several of the appellants tied up the remaining crew members and held knives and an emergency axe throughout the flight.

The Florida Air National Guard was monitoring the radar screen at Tindel Air Force Base in Panama City, Florida on the evening in question, and after observing the aircraft make a 90 degree turn north, approximately 12 seconds after its transponder started to emit the 7500 hijack signal, "scrambled" fighter jets to intercept the aircraft. Captain Adam Langston responded from Homestead Air Force Base, picked up the DC-3 emitting the 7500 signal, intercepted the aircraft, and escorted it to the Key West airport.

After the airplane landed in Key West, the airplane was met by law enforcement officers, who interrogated the appellants. U.S. Border Patrol Agent Kerry Heck testified that Norneilla-Morales told him he had planned for over a year to overtake an aircraft by force in order to go to the United States and had recruited "the other five." He stated that a week before the March 19 flight, he had placed knives in a duffel bag, which he passed through the window of the airport bathroom to someone inside who hid the bag in the bathroom ceiling. Norneilla-Morales retrieved the duffel bag directly before the flight and passed the knives to others just prior to boarding. Norneilla-Morales signaled the takeover when he saw the lights of Havana and broke down the door to the cockpit.

Agent Heck testified that Guerra-Morales told him he had been involved in the takeover plan for six months, that others were involved, and that pursuant to a prearranged signal, he had stood up and pulled out his knife. His role was to guard the crew. Guerra-Morales explained that the knives had been placed in a duffel bag and hidden in the airport bathroom, that two persons had brought the knives past security, and that he had been given a knife prior to boarding.

U.S. Border Patrol Agent Gordon Solis testified that Mejia Morales told him that planning for the event had started four or five months ago, but he was not in charge. He had been given a knife, which he hid in the back of his pants, and the others also had knives. His role was to stay near the cockpit.

FBI Special Agent Anthony Russo testified at trial that the Key West police had recovered five knives and several sheaths that had been thrown on the tarmac. Two more sheaths were found on the aircraft during the search, along with a hatchet, cord and tape that had been used to bind the crew, a role of tape, and the battered-in cockpit door.

The appellants' defense at trial centered on the theory that the entire crew was "in" on the plan to divert the aircraft to Miami. Norneilla-Morales testified that he had been approached by a Michael De la Nuez and by the co-pilot of the flight, Gustavo Salas Cleger, to plan a staged hijacking as a means of reaching the United States and obtaining political asylum. Norneilla-Morales testified that co-pilot Cleger designed the takeover plan, and that Cleger ensured that the airplane would have enough fuel to reach Miami, procured the appellants' tickets, and enabled them to board with knives. Norneilla-Morales claimed that he never held a knife to the Captain's throat because it was unnecessary, as the Captain was in on the plan. He explained the testimony of the crew members who testified against the appellants as arising from the crew's concerns about repercussions back in Cuba if they were to be implicated in the staging of a hijacking. Guerra-Morales testified at trial as well. He stated that his brother, Norneilla-Morales, told him about the plan to take over an Aerotaxi flight to get to the United States. Guerra-Morales never met De La Nuez or Cleger. Guerra-Morales testified that after they boarded the plane, he gave two knives to Norneilla-Morales, who took them up to the cockpit, and three knives to Hernandez and Arias-Izquierdo, but at no point did he see anyone holding a knife to the crew, and his own knife remained sheathed throughout the flight. Guerra-Morales explained that he and Norneilla-Morales had planned to tie up the crew as part of the "show," with shoe laces or draw strings on their underwear or bathing suits.

On rebuttal, co-pilot Cleger testified that he had never seen the appellants before the date of the flight. He denied knowing Norneilla-Morales or De La Nuez, denied that he had instructed appellants in any way, and denied that he gave Norneilla-Morales a compass.

At the conclusion of the trial, the jury convicted Arias-Izquierdo of Count II, Olivares-Samon and Mejia Morales of Counts I, II, and III, and Norneilla-Morales, Hernandez, and Guerra-Morales of all four counts of the superceding indictment. The district court imposed the following sentences: Arias-Izquierdo to 250 months' incarceration, three years' supervised release, and a $100 special assessment; Olivares-Samon and Mejia Morales to 240 months' incarceration and three years' supervised release as to each of Counts I, II, and III, all to run concurrently, in addition to a $300 special assessment; Hernandez to 240 months' incarceration and three years' supervised release as to each of the four Counts, all to run concurrently, and a $400 special assessment; and Norneilla-Morales and Guerra-Morales to 292 months' incarceration and three years' supervised release as to each of the four Counts, to run concurrently, and a $400 special assessment. All six appellants now raise timely appeals challenging their convictions and sentences on a variety of grounds, with each appellant adopting the arguments of his co-appellants pursuant to Federal Rule of Appellate Procedure 28(i).

II. DISCUSSION

A. Arias-Izquierdo

Arias-Izquierdo was convicted of Count II, aircraft piracy, and acquitted of Counts I, III, and IV. He challenges his conviction for aircraft piracy on two grounds. First, he argues that the government failed to present sufficient evidence to convict him of aircraft piracy or as an aider and abettor of aircraft piracy. Second, he argues that the district court erred when it denied his motion for mistrial relating to a false statement by the prosecutor during closing arguments.

1. Sufficiency of the Evidence²

In order to convict Arias-Izquierdo of aircraft piracy, the government was required to prove: (1) a seizure of, or exercise of control over, an aircraft, (2) by means of force, violence, threat of force or violence, or any form of intimidation, (3) with wrongful intent, (4) when that the aircraft was within the special jurisdiction of the United States. See 49 U.S.C. § 46502.

We have our doubts as to whether the government proved that Arias-Izquierdo himself seized or exercised control over the aircraft. However, the government did not need to prove Arias-Izquierdo's guilt as a principal because it successfully demonstrated Arias-Izquierdo's guilt as an aider and abettor, which is sufficient to support the conviction. See 18 U.S.C. § 2(a) ("Whoever commits an offense against the United States or aids, abets, counsels,...