U.S. v. Battle
| Decision Date | 16 June 2006 |
| Docket Number | No. 04 20159 CR BANDSTRA.,No. 04 20159 CR GOLD.,04 20159 CR GOLD.,04 20159 CR BANDSTRA. |
| Citation | 473 F.Supp.2d 1185 |
| Parties | UNITED STATES of America, v. Jose Miguel BATTLE, Jr., et. al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
United States of America, John Robert Blakey, Assistant United States Attorney, Juan Antonio Gonzalez, Assistant United States Attorney, United States Attorney's Office, Miami, FL, for Plaintiffs.
Jack Blumenfeld, Miami, FL, for Jose Miguel Battle, Sr.
Maria Del Carmen Calzon, Coral Gables, FL, for Manuel Osaac Marquez, Sr.
Joaquin G. Perez, Miami, FL, for Luis DeVilliers, Sr.
Joel Kaplan, Lisa Hanley Colon, (cocounsel), Miami, FL, for Jose M. Battle, Jr.
Paul D. Petruzzi, Miami, FL, for Abraham Rydz.
John F. O'Donnell, Fort Lauderdale, FL, for Julio Acuna.
Ramon de la Cabada, Miami, FL, for Orestes Vidan.
Ruben M. Garcia, Fort Lauderdale, FL, for Gustavo Battle.
Oscar Santiago-Rodriguez, Coral Gables, FL, for Gumersindo Gonzalez.
Richard Moore, Miami, FL, for Luis F. Perez.
Richard J. Diaz, Coral Gables, FL, for Orlando Cordoves.
Frank A. Rubino, Coconut Grove, FL, for Luis DeVilliers, Jr.
Curt D. Obront, McKenna & Obront, Miami, FL, for Maurilio Francisco Marquez.
Jose R.E. Batista, (local counsel), Batista and Batista, P.A., Miami, FL, Eren T. Irizarry Colon, Arecibo, PR, for Andres DeVilliers.
Mauricio Aldazabal, Coral Gables, FL, for Jorge Davila.
Emmanuel Perez, Coral Gables, FL, for Vivian Rydz.
Richard Docobo, Miami, FL, for Jose Aluart.
Orlando Do Campo, Assistant Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Jorge Nunez.
Jose Rafael Rodriguez, Miami, FL, for Norberto Fernandez.
Reemberto Diaz, Miami, FL, for Argelio Jimenez.
Samuel J. Rabin, Miami, FL, for Mordehay Tako.
Steven. E. Chaykin, Zuckerman Spaeder Taylor & Evans, Miami, " FL, for Yoram Izhak.
Jeffrey S. Weiner, Miami, FL, for Tomas Cabrerizo.
Neal R. Sonnett, Miami, FL, for Evelyn Maribel Runciman.
Kenneth J. Kukec, Miami, FL, for Valerio Cerron.
For Fed.R.Crim.P. 29 purposes, and pursuant to Fed.R.Evid. 103(c), I enter the following rulings and analysis on certain outstanding legal issues:
A. Scope of the Alleged Enterprise
The Defendants claim that the evidence adduced at trial establish that the "CORPORATION," as the charged enterprise, did not come into existence until the early 1980's and, therefore, any predicate acts and activities occurring in the 1970's are outside the scope of the charged enterprise conspiracy. This issue has arisen with regard to evidence relating to the Ernesto Torres ("Torres") murder and the testimony of former New Jersey police officer Diego Mella. For Rule 29 purposes, I address, here, the structure and membership of the "enterprise" in the 1970's, and the relationship of the murder to the organization.
An analysis of the issue must begin with the definition of "enterprise" under the RICO statute. For RICO purposes, an "enterprise" "[i]ncludes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the United States Supreme Court stated: id. at 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (emphasis added). The Turkette Court alluded to the fact that proof of a pattern of racketeering activity could also be used to show the existence of an enterprise. Turkette, 101 S.Ct. 2524 (). Post Turkette, the Eleventh Circuit, in. United States v. Weinstein, 762 F.2d 1522, 1536 (11th Cir.1985), stated that: "... the definitive factor in determining the existence of a RICO enterprise was an association of individuals, however loose or informal, which furnishes a vehicle for the commission of two or more predicate crimes (the pattern of racketeering activity requisite to the RICO violation)."
In several cases, the Eleventh Circuit has addressed the breadth of a RICO "enterprise." In United States v. Pipkins, 378 F.3d 1281, 1281 (11th Cir.2004), vacated on other grounds, 544 U.S. 902, 125 S.Ct. 1617, 161 L.Ed.2d 275 (2005), the Supreme Court explained: "An enterprise can consist of `a group of persons associated together for a common purpose of engaging in a course of conduct ... proved by the evidence of an ongoing organization, formal or informal, and by the evidence that the various associates function as a continuing unit.'" (citation omitted). The Court further explained: Id. Thus, there can be a "core" group of players with others that would participate in various means and ways, or even many ventures or individual conspiracies, provided there is "`one enterprise, one common purpose, and one over-arching conspiracy.'" Id. at n. 4. (quoting United States v. Valera, 845 F.2d 923, 929 (11th Cir.1988)).
The Eleventh Circuit has held that proof of an association's devotion to "making money from: repeated criminal activity ... demonstrates an enterprise's `common purpose of engaging in a course of conduct, regardless of whether the criminal activity is diverse."' United States v. Church, 955 F.2d 688, 698 (11th Cir.1992). Thus, an enterprise may consist of a core leader1 and a changing roster of associates that were engaged, at various times, in obtaining income from illegal acts; secretly laundering illegally obtained money by funneling it into legitimate businesses; protecting the income by concealing the enterprise's ownership of the businesses; and protecting the members' interests in the businesses by violence. In Church, the "enterprise was devoted to making money from repeated criminal activity, and protecting that money by any means necessary." Id. See, also United States v. Weinstein, 762 F.2d 1522, 1537 (11th Cir.1985)(quoting United States v. Elliott, 571 F.2d 880 (5th Cir.1978)) (the definitive factor in determining the existence of a RICO enterprise was an association of individuals, however loose or informal, which furnishes a vehicle for the commission of two or more predicate crimes (the pattern of racketeering activity requisite to the RICO violation)).
For Rule 29 purposes, the evidence sufficiently establishes that Battle, Sr. was the core leader of a large bolita gambling organization during the 1970's that operated in the New York area. However, the organization is distinct from Battle, Sr., although he was, at different times, its leader. The evidence also establishes that in the late 1970's, the organization was not known by the unofficial name of "THE CORPORATION." The organization charged in the Superseding Indictment existed nonetheless. It was structured in multiple tiers relating to the placing and collecting of illegal bets from various forms of illegal gambling. The organization was devoted to making as much money as possible through repeated bolita gambling. It also existed to protect that money by any means necessary. A key unifying factor for the ongoing organization during the 1970's, that tied it together as a continuous unit, was the respect and fear that Battle, Sr. instilled in others for the purpose of protecting the money-making interests of his organization. When necessary, violence was a tool used by the organization to effectuate this purpose. This ongoing factor continued to exist, according to Abraham Rydz ("Rydz"), even when Battle, Sr. was incarcerated in the 1970's.
With regard to the Torres murder, the evidence sufficiently establishes that Torres originally worked as an enforcer and later as a boilta banker for the Battle, Sr. organization in the 1970's. He left the organization because of a dispute with Battle, Sr. over his own outside gambling activities, which Battle, Sr. believed were inconsistent with the interests of the organization. Torres also owed the organization bolita money he collected as a banker.
Thereafter, Torres and Carlos ("Charlie") Hernandez ("Hernandez") entered their own conspiracy to kidnap and extort other bolita bankers that worked for Battle's organization. One such bolita banker was Luis Marrero ("Marrer"), who was related to Battle, Sr. Torres kidnapped and later killed Marrero. Battle, Sr. learned of Torres' involvement. Thereafter, members of the organization attempted to kill Torres on a number of occasions. Battle, Sr. eventually contracted with Hernandez to kill Torres and his girlfriend, Idalia Fernandez ("Fernandez"), who knew Battle, Sr. and who was knowledgeable about Torres' activities. The evidence sufficiently established that the Torres murder and the attempted murder of Fernandez were in furtherance of the RICO enterprise's conspiracy to punish the kidnaping and extortion of the organization's bolita bankers, including Marrero. Such killing also furthered the name and reputation of the RICO enterprise as charged in the Superseding Indictment. The evidence sufficiently established that the murder and attempted murder were committed by Julio Acuna ("Acuna") who was an enforcer for the organization and who acted under the direct...
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