U.S. v. Beale

• Decision Date: 28 January 1991
• Docket Number: No. 88-5962,88-5962
• Citation: 921 F.2d 1412
• Parties: 32 Fed. R. Evid. Serv. 783 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Cornelius BEALE, a/k/a "Buck", Eddie Lee Gilbert, a/k/a "Bee", a/k/a "B", Jose Antonio Doyharzabal, a/k/a "Joe", a/k/a "Joey", a/k/a "Tony", Justo Diaz Loriga, Angel Collado, Carlos Yero, a/k/a "Jacinto, Luis", a/k/a "Monte, Carlos", a/k/a "Mendez, Carlos Yero", Francisco Lavin, Jerome Roberts, a/k/a "Legs", Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1412

921 F.2d 1412

32 Fed. R. Evid. Serv. 783

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Cornelius BEALE, a/k/a "Buck", Eddie Lee Gilbert a/k/a "Bee", a/k/a "B", Jose Antonio Doyharzabal, a/k/a "Joe", a/k/a "Joey", a/k/a "Tony", Justo Diaz Loriga, Angel Collado, Carlos Yero, a/k/a "Jacinto, Luis", a/k/a "Monte Carlos", a/k/a "Mendez, Carlos Yero", Francisco Lavin Jerome Roberts, a/k/a "Legs", Defendants-Appellants.

No. 88-5962.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 1991.

Michael G. Smith, Fort Lauderdale, Fla. (court-appointed), for Gilbert & Loriga.

Calianne P. Lantz, Miami, Fla. (court-appointed), for Beale.

Benson B. Weintraub, Sonnett Sale & Kuehne, P.A., Miami, Fla. (court-appointed), for Doyharzabal.

Bonnie Phillips, Asst. Federal Public Defender, Miami, Fla. (court-appointed), for Yero.

Sheryl J. Lowenthal, Coral Gables, Fla. (court-appointed), for Lavin.

Helen Ann Hauser, Law Offices of Pines and Hauser, Coconut Grove, Fla. (court-appointed), for Roberts.

Mark D. Seltzer, Linda Collins Hertz, Dawn Bowen, Asst. U.S. Atty., Miami, Fla., for U.S.

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

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

JOHNSON, Circuit Judge:

This case arises on appeal from the district court's conviction of eight defendants on charges of engaging in a racketeering conspiracy to commit armored truck robberies.

I. STATEMENT OF THE CASE

A. Background

The district court convicted the defendants of participating in a racketeering organization ("the organization") that committed a series of armored truck robberies or attempted robberies in Florida's Dade and Broward Counties between August 1982 and April 1985.

Nearly one hundred witnesses testified at the trial. They were mainly witnesses to the robberies and law enforcement officials who investigated the robberies. By far the most important evidence regarding the organization's criminal activities came from the testimony of three co-conspirators, Quevedo, ¹ Dominguez, and Stevens, who testified on behalf of the government. In return for Quevedo's testimony, the government agreed to accept his guilty plea to count three, armored truck robbery, and to drop the remaining charges. In return for Dominguez' testimony, the government allowed him to plead guilty to count two, participation in a racketeering conspiracy. The government also agreed not to indict Dominguez on any of the other counts charged against the organization and to notify Dominguez' sentencing judge of Dominguez' cooperation in the instant case. Dominguez also received financial assistance for himself and his family from the Federal Bureau of Investigation (FBI) witness protection program. Stevens also entered a cooperation/plea agreement with the government. He pled guilty to armored truck robbery. In return, the government agreed to inform Stevens' sentencing judge of Stevens' cooperation, but made no agreement to recommend a specific sentence. ² Stevens also agreed to serve as an undercover informant for which he was paid approximately $7,000. At the time of the trial Stevens had also pled guilty to marijuana possession and was awaiting sentencing. He had also been charged with trafficking in heroin and cocaine and was awaiting trial on these charges. The FBI was aware that while Stevens was in their employ as an informant, he continued to operate a "smokehouse" ³ in order to obtain information on the organization and its members.

According to the testimony of Quevedo, Dominguez, and Stevens, the organization adopted a distinctive method of robbing armored trucks. Under the direction of DOYHARZABAL, ⁴ planning for a robbery began one to three months before a target date. The organization would stake out a variety of different armored truck routes and banks. Each participant in a robbery would assume a specific assigned role, e.g., gunman, getaway car driver. They would rob the armored cars at gunpoint as the couriers exited the bank with a money bag. The robbers often assaulted the couriers, and, at least once, exchanged gunfire with the armored car guards. Once the robbers seized the money, they would flee in a getaway car, usually a stolen one. They would drive to a prearranged location where they would switch into a second getaway car. In the course of dividing up the proceeds, they would withhold money from each robber's share to finance the purchase of weapons and cars for future robberies.

The following nine robberies or attempted robberies served as the predicate acts underlying the defendants' convictions:

The First West Flagler Street Robbery ⁵--August 5, 1982--Armed robbery of a Purolator armored truck at the Barnett Bank on West Flagler Street, Miami, Florida (counts three, four, and five). The alleged participants were BEALE, DOYHARZABAL, Valera, and Quevedo.

The Second West Flagler Street Robbery--March 1, 1983--Armed robbery of a Brink's armored truck at the same Barnett Bank in Miami (counts six, seven, and eight). The alleged participants were BEALE, DOYHARZABAL, LORIGA, YERO, Dominguez, and Valera.

The West Dixie Robbery--August 2, 1983--Armed robbery of a Brink's armored truck at a Barnett Bank located on West Dixie Highway, Miami, Florida (counts nine, ten, and eleven). The alleged participants were BEALE, DOYHARZABAL, LAVIN, ROBERTS, YERO, Dominguez, and Valera.

The Plantation Robbery--August 9, 1983--Armed robbery of a Brink's armored truck at a Barnett bank in Plantation, Florida (overt acts F, G, and H). The alleged participants were LORIGA, DOYHARZABAL, and COLLADO.

The Sun Bank Attempted Robbery--March 13, 1984--Attempted armed robbery of a Wells Fargo armored truck at a Sun Bank on Bird Road in Miami, Florida (overt Acts I and J). The alleged participants were BEALE, DOYHARZABAL, and GILBERT.

The Coral Gables Attempted Robbery--April 2, 1984--Conspiracy to rob a Brink's armored truck at a Barnett Bank in Coral Gables, Florida (count twelve). The alleged participants were BEALE, COLLADO, DOYHARZABAL, LAVIN, and Dominguez.

The Biscayne Robbery--June 12, 1984--Robbery of a Brink's armored truck at a Barnett Bank on Biscayne Boulevard in Miami, Florida (count thirteen). The alleged participants were BEALE, COLLADO DOYHARZABAL, LAVIN, Dominguez, and Stevens.

The Hialeah Attempted Robbery--April 2, 1985--Conspiracy to rob a Wells Fargo armored truck in Hialeah, Florida (counts fourteen and fifteen). The alleged participants were DOYHARZABAL, GILBERT, LORIGA and ROBERTS.

The Southeast Bank Robbery--April 30, 1985--Armed robbery of a Wells Fargo armored truck at a Southeast Bank in Miami Lakes, Florida (counts sixteen, seventeen and eighteen). The alleged participants were DOYHARZABAL, GILBERT, and ROBERTS. ⁶

B. Proceedings Before the District Court

On July 30, 1987, the appellants were charged in a seventeen-count indictment by a federal grand jury in the Southern District of Florida. On December 10, 1987, the grand jury returned a second superseding twenty-count indictment charging the appellants with the following offenses: (1) racketeering conspiracy, in violation of 18 U.S.C. Secs. 1962(d) and 1963 (count one); (2) participation in a racketeering enterprise, in violation of 18 U.S.C. Secs. 2, 1961, 1962(c), 1963 (count 2); (3) armored truck robbery, in violation of the Hobbs Act, 18 U.S.C. Secs. 2, 1951 (counts three, six, nine, thirteen and sixteen); (4) conspiracy to commit armored truck robberies, in violation of 18 U.S.C. Secs. 2, 1951 (counts twelve and fourteen); (5) bank robbery, in violation of 18 U.S.C. Secs. 2, 2113(a) (counts four, seven, ten and seventeen); (6) armed bank robbery, in violation of 18 U.S.C. Secs. 2, 2113(d) (counts five, eight, eleven and eighteen); (7) attempted bank robbery, in violation of 18 U.S.C. Secs. 2, 2113(a) (count fifteen); and (8) use of a firearm during the commission of a bank robbery, in violation of 18 U.S.C. Sec. 924(c) (counts nineteen and twenty).

The jury convicted the appellants of the following counts:

DOYHARZABAL Convicted of counts 1-14, 16-18. Acquitted of count 15. Sentenced to 140 years in prison. Required to serve a minimum of forty-five years before parole. ⁷

BEALE Convicted of counts 1-13. Sentenced to 115 years in prison. Required to serve thirty-five years before parole.

LAVIN Convicted of counts 1, 2, 9-11, 13. Acquitted of count 12. Sentenced to thirty-five years in prison. Required to serve ten years before parole.

LORIGA Convicted of counts 1, 2, 6-8, 14. Acquitted of count 15. Sentenced to twenty-five years in prison. Required to serve one-third of sentence before parole.

COLLADO Convicted of counts 1, 2, 12, 13. Sentenced to twenty-five years in prison. Required to serve one-third of sentence before parole.

ROBERTS Convicted of counts 1, 2, 14, 16-18. Acquitted of counts 9-11, 15, and 20. Sentenced to sixty-five years in prison. Required to serve twenty years before parole.

GILBERT Convicted of counts 1, 2, 14, 16-18. Acquitted of counts 15 and 19. Sentenced to sixty-five years in prison. Required to serve twenty years before parole.

YERO Convicted of counts 9-10. Acquitted of counts 1, 2, 6-8. Sentenced to twenty years in prison. Required to serve one-third of sentence before parole.

In this appeal, the appellants raise numerous challenges to their convictions.

II. ANALYSIS

A. Admission of Statements By Co-Conspirators

ROBERTS claims the district court erred when it admitted Quevedo's testimony regarding statements by Valera describing the West Dixie Robbery under the co-conspirator exception of Fed.R.Evid. 801(d)(2)(E). He argues that the government has failed to show that these statements were made in the course or furtherance of the conspiracy. Rather, he contends that Quevedo had quit the organization and these conversations merely represented gossip among brothers-in-law.

ROBERTS and GILBERT claim that the district...