U.S. v. Benitez

• Citation: 741 F.2d 1312
• Decision Date: 17 September 1984
• Docket Number: No. 83-5551,83-5551
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando BENITEZ, Defendant-Appellant. Non-Argument Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1312

741 F.2d 1312

UNITED STATES of America, Plaintiff-Appellee, v. Armando BENITEZ, Defendant-Appellant.

No. 83-5551

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Sept. 17, 1984.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 5, 1984.

Stephen J. Finta, Fort Lauderdale, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Joseph R. Buchanan, Linda Collins-Hertz, David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HILL, KRAVITCH and HATCHETT, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Armando Benitez was tried and convicted in the United States District Court for the Southern District of Florida on charges of conspiring to murder Drug Enforcement Administration (DEA) agents engaged in the performance of their official duties, 18 U.S.C. Secs. 1114 & 1117; assaulting a DEA agent (Charles Martinez) with a deadly weapon while he was performing official duties, 18 U.S.C. Secs. 111 & 2; assaulting another DEA agent (Kelly McCullough) with a deadly weapon while he was performing his official duties, id.; robbing agent Martinez of his official United States government passport and DEA credentials, 18 U.S.C. Secs. 2112 & 2; and robbing Agent McCullough of his official United States government passport and DEA credentials, id. Following a trial, a jury found Benitez guilty on all five counts. Benitez appeals to this court, requesting that we set aside his conviction. We affirm.

I. THE EVENTS IN COLOMBIA

On February 2, 1982, DEA special agents Kelly McCullough and Charles Martinez journeyed to Colombia to participate in an operation known as Tiburon. To implement Tiburon, McCullough and Martinez intended to fly airplanes from Colombian airfields to identify and photograph ships possibly carrying drugs. The agents would then forward the information they had obtained to the appropriate United States authorities. Martinez and McCullough entered Colombia carrying official United States government passports; the Colombian government knew of and approved their presence in Colombia.

Martinez and McCullough checked into adjoining rooms at the Don Blas Hotel in Cartagena, Colombia. On February 5, 1982, DEA Special Agent Johnny Phelps, Special Agent in charge at the U.S. Embassy at Bogota, requested that Martinez and McCullough determine whether Rene Benitez, a fugitive from American justice, was also staying at the Don Blas.

On February 7, 1982, Martinez went to the office of the hotel manager where he spoke with a man named Mr. Lazaro. Martinez identified himself as a DEA agent and requested information concerning Rene Benitez' whereabouts. Martinez displayed his DEA identification and official United States passport and informed Lazaro that he was staying in room 1804. Lazaro promised to review the hotel records and call Martinez, but he did not do so.

On February 8, 1982, Martinez called Lazaro and asked him whether he had located Benitez. Lazaro responded that he had been unable to review the records, but that he would do so and call Martinez. On February 9, 1982, Martinez again went to the manager's office and asked to speak to the manager. Martinez then discovered that Lazaro was not the manager. Martinez identified himself to the manager, again displaying his official United States passport and DEA credentials. Martinez asked if Rene Benitez was staying in the hotel. The manager promised to call him within the hour, but did not do so. Martinez and McCullough abandoned any hope of receiving cooperation from the hotel management and went to dinner. When they returned from dinner at 9:00 p.m., the hotel manager had not left them a message.

At 9:30 p.m., Martinez heard a knock on the door of room 1804. Martinez answered the door and discovered a young woman in a maid's uniform who informed him that she was there to turn down the bed and open the blinds. Martinez declined her offer and watched as she walked down the hall, not knocking at any other doors. Martinez, who realized that the woman was not the regular maid whom he had previously seen on duty, contacted McCullough and informed him of the suspicious event.

At 12:30 a.m., both Martinez and McCullough were awakened by a loud banging on the door of room 1804. McCullough entered room 1804 through the adjoining door and asked who was at the door. The reply in Spanish was "Police! Open the door." Martinez went to the door of 1803, opened it, and looked down the hall. He saw four men standing in front of Room 1804; two had guns drawn. When they saw Martinez, they ran to the door of room 1803, but Martinez quickly closed and locked it.

Martinez asked to see the men's identification. A man's voice, later identified as that of Jose Ivan Duarte, said that he wanted to speak to Martinez concerning his questions to Lazaro. A man's voice, later identified as that of Rene Benitez, said "open the door or we will shoot it down." Martinez tried to call the police, but the hotel operator refused to place the call. She agreed to send up hotel security. At that point, Duarte slid his Colombian National Police identification card under the door. Martinez slid his official passport under the door and said he was assigned to the United States Embassy in Bogota. Hotel security then knocked on the door of room 1803 and informed Martinez and McCullough that the men outside were police officers. Martinez opened the door. Duarte dismissed hotel security and entered the room carrying a pistol, accompanied by Armando Benitez, Rene Benitez, and Jairo Valencia.

Duarte grabbed Martinez' arm and led him into room 1804. Duarte asked Martinez his name. Rene Benitez then walked in holding a cocked pistol and said, "I am Rene Benitez. Why are you looking for me?" Martinez repeated that he was with the Embassy and was trying to locate Rene Benitez at the hotel. Duarte then told Martinez to get dressed because they were going to the police station for more questions. Armando Benitez then walked in and again ordered Martinez to get dressed. Armando Benitez, Duarte, and Rene Benitez then searched room 1804.

While the four Colombians questioned Martinez in room 1804, McCullough was kept in room 1803. Rene Benitez searched McCullough for weapons at gunpoint, and Armando Benitez searched McCullough's personal effects, taking McCullough's DEA credentials, official passport and personal passport. Duarte, Rene, and Armando inspected the credentials. Armando said, "These are the guys. They are both DEA agents." Martinez asked to call the American Embassy. Rene replied, "you are not going to call the Embassy." Rene pointed his cocked pistol at Martinez' head and stated, "this is the only law in Colombia."

The four Colombians removed Martinez and McCullough from room 1803 at gunpoint, led them to the elevators, and removed them through the lobby of the hotel. Rene Benitez directed Martinez and McCullough to get into a car waiting at the curb. McCullough entered the left rear seat with Valencia next to him. Durate drove, and Rene Benitez sat in the front passenger seat, with Martinez on the hump between Duarte and Rene. Armando Benitez did not enter the car, and the agents did not see him again that evening.

As Rene Benitez held his gun on Martinez, Duarte drove the car north, out of Cartagena and through an isolated rural area. Valencia told McCullough that they were going to the police station. Rene Benitez asked Martinez what he was doing in Colombia. Martinez said he was assigned to the United States Embassy as a pilot, obtaining information on ships smuggling marijuana. Rene then informed Martinez that he did not appreciate Americans coming down and getting into their marijuana business. To make sure that Martinez got the message, Rene shot him in the right hip. The impact of the gun's discharge knocked the car out of gear, and it coasted to a stop. Martinez asked to go to the hospital. Duarte and Rene assured him that they were taking him to a hospital immediately. The car then passed a hospital in the village of Turbaco, but did not stop.

Three miles past Turbaco, Duarte stopped the car alongside a wooded area. He informed the agents that the "other guys" were following in a second car. Rene Benitez, Duarte, and Valencia got out of the car. Rene Benitez motioned with his gun for Martinez to get out of the car. While Rene and Duarte argued over whether to leave the agents in the car, Martinez told McCullough, "they are going to kill us." Martinez found it difficult to get out of the car, but managed to stand up, supporting himself by holding on to the car. Seeing Rene's gun pointed at his head, he fell back on the seat. Rene shot him in the shoulder. Rene pulled the trigger again, but the gun did not fire. Martinez gathered his strength and rushed Rene, whose gun again misfired. Martinez tried to grab Rene, who hit him with the gun and knocked him down. Martinez managed to get up and run away.

McCullough managed to push his way out of the back seat when Rene shot Martinez. McCullough tried and failed to grab Duarte's gun and then ran away. Three shots fired at him missed. McCullough ran into a ditch alongside the road, fell down and got up. A bullet then struck the inside of McCullough's knee as another entered his hip. He fell. Duarte stood over him and shot him in the neck. McCullough waited for another shot, but the shot never came.

Martinez hid in the woods overnight, and, after the sun rose, he made his way to the road. He stopped a vehicle that drove him to the Colombian naval hospital in Cartegena. When McCullough realized that he was alive, he ran down the road, hiding whenever a car came by. He saw the Colombians' car go by. Eventually, he reached a church in Turbaco and persuaded the priest, who spoke English, to return with him and look for Martinez. The priest also brought a doctor and a policeman. When they...