U.S. v. Capati, Criminal No. 94-1238-R.

• Decision Date: 29 September 1997
• Docket Number: Criminal No. 94-1238-R.
• Citation: 980 F.Supp. 1114
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Alberto M. CAPATI (1), Oscar R. Redondo (2), Defendants.

980 F.Supp. 1114

UNITED STATES of America, Plaintiff, v. Alberto M. CAPATI (1), Oscar R. Redondo (2), Defendants.

Criminal No. 94-1238-R.

United States District Court, S.D. California.

September 29, 1997.

COPYRIGHT MATERIAL OMITTED

Alan D. Bersin, U.S. Atty., Randy K. Jones, Asst. U.S. Atty., San Diego, CA, for U.S.

Robert E. Boyce, Laura Schaefer, San Diego. CA, for defendant Capati.

Jonathan P. Milberg, Sherman M. Ellison, Los Angeles, CA, for defendant Redondo.

ORDER DENYING DEFENDANTS' MOTIONS FOR JUDGMENT OF ACQUITTAL; AND GRANTING DEFENDANTS' MOTIONS FOR A NEW TRIAL

RHOADES, District Judge.

I. Overview

Defendants Alberto Capati and Oscar Redondo move the Court for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Alternatively, they seek a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons set forth below, the Court denies the motions for a judgment of acquittal, and grants the motions for a new trial.

II. Background

On September 27, 1996, a jury convicted Alberto Capati of conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); three counts of interference with commerce by robbery, in violation of the Hobbs Act (Counts Two, Four and Five); and two counts of using or carrying a firearm during or in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Three and Six). The jury convicted Oscar Redondo on Counts One, Four, Five and Six only. The convictions were a result of Defendants' involvement in a series of jewelry store robberies. The evidence at trial was as follows:

A. The Initial Arrangement

In 1989, Jeffrey Diaz, the Government's key witness, first met defendant Capati when Diaz enlisted in the army. Capati spent the latter part of his lengthy career in the army as a recruiter. In September of 1991, Diaz attempted to reenlist in the army. In late November or early December of 1991, during a meeting between Diaz and Capati at the army recruiting station in National City, the conversation turned to the subject of jewelry.

According to Capati's testimony, Diaz first approached the subject of jewelry by asking Capati whether he might like to purchase some items from Diaz's uncle who was closing a jewelry business in Los Angeles. Diaz showed Capati a brochure depicting the items that were available from Diaz's uncle. Eventually, Capati agreed to buy certain pieces of jewelry from the brochure and gave Diaz $2,000. (Tr. at 1575-78.)

Diaz painted a very different picture of the meetings. According to Diaz, he came to the recruiting station wearing a gold necklace and ring. Capati noticed the jewelry and asked Diaz whether similar items could be obtained. It was discussed that the jewelry would have to be "taken" and eventually agreed upon that the method for doing so would be a "snatch-and-grab".¹ (Tr. at 116-21.) Capati provided Diaz with a list of the items of jewelry desired and the two of them agreed on a price of $3,500 for Diaz to obtain the items through a series of grab-and-runs. (Tr. at 120-22).

B. The Grab-And-Runs

From the end of 1991 through January 1992, Diaz testified that he and the men he had assembled committed a series of grab-and-run thefts in order to obtain the jewelry for which Capati had paid. (Tr. at 160-80.) The first grab-and-run took place a few days after Christmas 1991. (Tr. at 165.) Diaz hired Allen Denson and Ernie Castro to commit the theft. With the assistance of Diaz, Denson and Castro stole two diamond rings from Diamond Designs in La Mesa, California. The following day, Diaz delivered the two rings to Capati and Redondo at the house of one of Redondo's relatives. (Tr. at 169-70). At this meeting, Redondo first became involved in negotiations with Diaz. The negotiations centered on Diaz obtaining the same type of jewelry for Redondo that Diaz was obtaining for Capati. (Tr. at 171.) Diaz ultimately gave one of the rings from the theft to Capati and one to Redondo. The ring given to Capati was applied against the advance payment that Capati had given to Diaz.

A second grab-and-run took place in early January 1992 at a Zale's in Chula Vista. Although Diaz participated in the planning, the theft was committed by Denson and an individual named Marcus. Diaz could not recall what was done with the one diamond ring taken during the theft.

The third grab-and-run was committed by Denson in mid-January to late January 1992 at Don Roberto Jewelry in Plaza Bonita. (Tr. at 176-79). Diaz testified that immediately after the grab-and-run, he delivered the diamond tennis bracelet taken during the theft to Capati and Redondo at the recruiting station in National City. (Tr. at 177-78.) At this meeting, Redondo again expressed his interest in obtaining similar jewelry and also expressed an interest in obtaining Rolex watches.

The last of the grab-and-runs, which also took place in January 1992, was committed by Denson and another individual at a Jessop's jewelry store. Diaz testified that he sold the one Diamond ring taken in the theft to Sergeant Ramos, another army recruiter.

C. The Switch From Thefts To Robberies

Although the grab-and-runs and the negotiations between Diaz and Defendants described thus far were certainly relevant to the proceedings, it is undisputed that the grab-and-runs did not constitute Hobbs Act robberies. The grab-and-runs were not alleged in the superseding indictment and the jury was instructed that the grab-and-runs did not constitute robberies under the law. Diaz testified, however, that after the last of the grab-and-runs an agreement was made with Defendants that Diaz would begin committing actual robberies, rather than grab-and-runs. This meeting was a crucial, and much disputed, turning point in the operation.

Diaz testified that after the last of the grab-and-runs he met with Capati and Redondo at the recruiting station in National City. (Tr. at 129, 184.) On direct examination, Diaz testified that the meeting took place in January 1992, or, more specifically, in mid-January 1992 around the same time as the Jessop's grab-and-run. (Tr. at 126, 181.) On cross-examination, Diaz testified that the Jessop's grab-and-run took place on January 16, 1992, and that the meeting took place a short time thereafter. (Tr. at 325, 333-34.) When pressed, Diaz testified that the meeting took place within two or three days after the January 16 Jessop's grab-and-run and that the meeting was no later than January 19, 1992. (Tr. at 334-35.)

Diaz testified that the primary topic of the meeting was Defendants' concern regarding the pace at which Diaz was obtaining jewelry. (Tr. at 126-27, 182-83.) The result of the meeting, according to Diaz, was an agreement that harsher methods, including the use of force and the hiring of a gang, would be employed, thus transforming the grab-and-runs into "full-blown" robberies. (Tr. at 127-31, 183-85.) On the first day of his testimony, Diaz testified that the use of a weapon was not specifically discussed during the meeting. (Tr. at 130.) On his second day of testimony, however, Diaz testified that the use of a gun was indeed discussed. (Tr. at 183.) In any event, Diaz testified that there was no misunderstanding of the methods that were to be used and that Defendants, while not wishing to know the details of the robberies, told Diaz in effect to "do what you have to do." (Tr. at 130-31, 183-85.)

Capati testified that the pivotal meeting with Diaz never occurred. In fact, Capati testified that the meeting could not have occurred because he and his family were visiting the Grand Canyon at all times during the period in which Diaz testified that the meeting could have occurred. Capati testified that he left San Diego for the Grand Canyon on January 17, 1992. (Tr. at 1583-84.) He remained at the Grand Canyon until at least the 19th or 20th when the family headed to Lake Havasu before returning to San Diego. (Tr. at 1584-85.)

Capati produced highly persuasive proof of his trip to the Grand Canyon and Lake Havasu. Capati testified that he experienced car trouble during the Grand Canyon trip and that, as a result, he had his tires replaced at a gas station. Capati produced a receipt evidencing this. (Def's Ex. JJ.) The trip to Arizona was further corroborated by family photographs and other receipts, as well as military leave records and the testimony of two of Capati's children. (Def's Ex. PP-1 through PP-6; RR-1 through RR-4.)

D. The Robberies

The first of the armed robberies occurred at Diamond Designs in Mission Valley during the first week of February 1992. (Tr. at 188.) Prior to the robbery, Diaz had acquired a gun and instructed Denson what to do with it. (Tr. at 187.) Denson committed the robbery with another individual and took approximately 40 diamond rings. According to Diaz, Capati and Redondo took almost all of the rings stolen during the robbery.

In mid-February 1992, a robbery was committed at Diamond Designs in La Mesa. (Tr. at 193.) Diaz cased the jewelry store and hired Joe Perez to commit the robbery. Jason Diaz drove the getaway car. According to Diaz, both Capati and Redondo purchased some of the jewelry stolen in the robbery for 10% of the ticketed price.

The third robbery occurred during the first week of March 1992 at Weisfield Jewelers in Fashion Valley. (Tr. at 204.) Again, Diaz cased the store and then told Denson and Perez "to hit the place." (Tr. at 205.) Diaz testified that Capati and Redondo took some of the approximately 40 to 50 rings stolen during the robbery.

The next robbery occurred in late March 1992 at a Ben Bridge jewelry store in Mission Valley. (Tr. at 210.) After casing the store, Diaz arranged for Perez to come to San Diego to commit the robbery. Perez committed the robbery with Miguel Ortiz who was hired by Diaz as the operation grew. According to Diaz, Capati paid $10,000 and Redondo paid $4,000 for some of the loose diamonds, diamond...