U.S. v. Garcia, 82-5048

Decision Date07 November 1983
Docket NumberNo. 82-5048,82-5048
Parties14 Fed. R. Evid. Serv. 826 UNITED STATES of America, Plaintiff-Appellee, v. Jose GARCIA and Francisco Garcia, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Neal A. Dupree, Asst. Federal Public Defender, Charles White, Miami, Fla., for defendants-appellants.

Stanley Marcus, U.S. Atty., Sari B. Marmur, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and ATKINS *, District Judge.

ATKINS, District Judge:

Jose Garcia and Francisco Garcia were convicted of multiple counts charging (a) stealing and robbing money of the United

States by use of a pistol, (b) conspiracy to steal, (c) possession of counterfeit Federal Reserve notes and (d) assaulting a Secret Service Agent with a loaded pistol. Jose was found guilty on all counts. Francisco was convicted of all but Count V relating to the assault. The Garcias raised issues dealing with a "postal nexus" as an essential element of the property stolen; Counts II, III and V having the same elements, precluding consecutive sentences; the admissibility of the counterfeit bills; and the sufficiency of the evidence. Finding no requirement of a "postal nexus" as an essential element, the counterfeit bills were properly admitted in evidence, consecutive sentences were correctly imposed under 18 U.S.C. Secs. 2114, 641 and 111, and that the evidence supports the convictions, we affirm.

THE FACTS

The facts are not substantially in dispute.

On July 22, 1981, Special Agent K. David Holmes, posed as someone interested in buying counterfeit money with genuine currency. Accompanied by a confidential informant named Jorge Castro, Agent Holmes went to Douglas Park in Miami, Florida, to meet the individuals with whom he would conduct negotiations for the purchase of counterfeit money (T 13). Informant Castro introduced Agent Holmes to Ernesto Dominguez and Appellant Francisco Garcia (T 14) as the purchaser of the counterfeit money (T 15). Dominguez asked Holmes whether he had brought the genuine currency. Agent Holmes responded affirmatively (T 15). When Agent Holmes asked Dominguez if they had the counterfeit, Dominguez responded that the counterfeit was in the trunk of the white Trans-Am in which the defendants had arrived at Douglas Park (T 15-16). The Trans-Am was parked a few spaces away from where Agent Holmes had parked his government vehicle.

Dominguez walked over to the Trans-Am, followed shortly thereafter by Agent Holmes (T 16). Appellant Jose Garcia was seated in the driver's seat of the Trans-Am (T 17). When Agent Holmes told Appellant Jose Garcia that he wanted to do the deal, Jose Garcia stated he was not going to count phony bills there because the "place" (Douglas Park) was "sort of heated up" (T 18). The defendants wanted to see the genuine currency before displaying the counterfeit (T 18). At that point, Agent Holmes flashed the $1,800 of government money to Dominguez, while Jose Garcia remained seated in the Trans-Am and Francisco Garcia remained standing near Agent Holmes' vehicle (T 19).

Agent Holmes returned to his vehicle, followed by Dominguez. Agent Holmes once again stated that he wanted to do the deal there, but Dominguez reiterated that the place was "heated up" and said they could do the deal in another location (T 720-21). Dominguez and Francisco Garcia returned to the Trans-Am; as the vehicle drove past, they yelled that they were going to Bryant Park (T 21).

When Agent Holmes arrived at Bryant Park, Francisco Garcia and Dominguez were standing outside the Trans-Am. Jose Garcia was seated inside the vehicle (T 37). Dominguez wanted to see the genuine currency again, but Agent Holmes refused (T 41), commenting that he did not think they had any counterfeit; he asked them to show him a sample. Francisco Garcia then gave Agent Holmes a counterfeit $50 bill to examine. Dominguez assured Agent Holmes they had $85,000 in counterfeit currency to sell. Agent Holmes once again asked to see the counterfeit and began walking to his vehicle (T 42-43).

After Agent Holmes had walked about two paces towards his vehicle, Jose Garcia jumped out of the Trans-Am holding a semi-automatic pistol. Jose Garcia pointed the pistol at Agent Holmes, chambered a round into the pistol, assumed a combat stance, gripping the pistol with both hands with his finger in the trigger, pointed the loaded, chambered pistol at Agent Holmes and screamed: "Enough of this bullshit, give me the money" (T 43). Agent Holmes raised his arms in the pre-determined distress signal and began inching his way towards his vehicle, telling Jose Garcia that he was going to get the money (T 44).

Surveillance Agent Null observed Agent Holmes with his hands in the air, the prearranged distress signal which the undercover agent was to give if his life was in danger (T 88-89). While Agents Null and Grant were racing to the scene, Agent Null observed Jose Garcia pointing the pistol at Agent Holmes (T 90). Surveillance Agent Grant also saw Jose Garcia pointing the gun at Agent Holmes (T 97).

Within seconds, Agents Null and Grant arrived and shouted at Jose Garcia to drop the gun. At that point, Jose Garcia dropped the weapon (T 44). Agent Grant recovered the weapon from the ground and disarmed it, determining that one round had been chambered into the pistol (T 99). It was registered to Francisco Garcia (T 125). After disarming Jose Garcia and putting him under arrest, Agent Null conducted a pat-down of defendant Jose Garcia and seized a $100 counterfeit bill, which he immediately turned over to Agent Foley (T 91, 124).

Agent Hackenberry was also on surveillance at Bryant Park that day. Upon seeing Agent Holmes raise his hands in the distress signal, he also raced to the scene and observed Francisco Garcia running towards the government vehicle (T 110). Francisco Garcia leaned into the government vehicle through the opened door on the driver's side (T 110), exited the vehicle and, looking back over his shoulder, ran towards Agent Hackenberry's vehicle, carrying the black leather pouch (T 111). As Francisco Garcia ran away from the scene, the vehicle Agent Hackenberry was driving and Francisco Garcia collided, resulting in the black pouch dropping out of Francisco Garcia's hand (T 113). After Jose Garcia had been disarmed, Agent Holmes observed that the car door of the government vehicle was open; laying next to the vehicle on the ground was the black pouch containing the "flash roll" of government money (T 46).

Agent Grant's pat-down of Francisco Garcia uncovered the trunk key to the Trans-Am and a $50 counterfeit note, which note was turned over to Agent Foley (T 102, 118). Agent Grant subsequently drove the Trans-Am to the Secret Service Miami Field Office where a search of the trunk of the vehicle revealed no counterfeit currency (T 103-04).

The Defense Testimony

Both appellants testified in their own defense, essentially disputing the government witnesses' testimony as to what had happened and claiming that they had been beaten by the agents. Jose Garcia testified that the confidential Informant Jorge Castro had proposed that they show a few counterfeit bills to a potential purchaser and steal the genuine currency which the man would bring as payment for the counterfeit (T 138, 140-41). Jose Garcia had agreed, and Informant Jorge Castro had given him a $100 counterfeit bill and had given Francisco Garcia a $50 counterfeit bill (T 142). According to Jose Garcia, the plan was simply to take the money. He denied that a pistol was used (T 143). Jose Garcia testified that on July 22, 1981, they had met the agent at Douglas Park and had later moved to Bryant Park (T 145) where there had been an argument about who would show his money first (T 148).

Jose Garcia said that he had never had a gun at the scene. (T 157). Instead, he claimed that Agent Holmes, using the agent's own weapon, had pistol-whipped Jose Garcia on the head (T 148-51). He also testified that Agent Holmes had beaten Ernesto Dominguez to force Dominguez to reveal the location of the counterfeit money (T 148).

Francisco Garcia related essentially the same story as his brother (T 183-200). He testified that Informant Jorge Castro had given him the $50 counterfeit bill (T 180-81). Francisco Garcia said that Ernesto Dominguez had displayed to Agent Holmes the $50 counterfeit and had returned it to Francisco Garcia (T 192). He further testified that the weapon which was introduced into evidence had been in the glove compartment of the Trans-Am (T 182). Although he agreed that a car had hit him, Francisco Garcia denied that he had ever possessed the pouch containing the U.S. Government money (T 193). He also testified that his brother never had a gun (T 194).

The defense also called Marta Pedrosa, who testified that on July 22, 1981, while standing outside her home, she had seen two cars speeding to the park and stopping near a white Trans-Am (T 228-30). According to Pedrosa, she ran to the park and saw the agents jumping three men and kicking them (T 233). She identified Jose Garcia and Francisco Garcia as two of the men who had been arrested and kicked (T 234). She said she had seen Francisco Garcia fall after being hit by the automobile, but stated that she had not noticed any black pouch in his hand or on the ground (T 238). She identified Agent Foley as having twisted Jose Garcia's arm, demanding to know where the money was (T 239). When the agent had found the key to the Trans-Am, he had gone into the vehicle and had come out holding an automatic pistol (T 241-42). She thought the gun had been removed from the glove compartment.

Rebuttal by the Government

On July 22, 1981, Edna Benson was in her house, which faces the park. She had noticed the people and heard screaming (T 262). She had gone to the...

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