U.S. v. Garza-Robles

• Decision Date: 29 November 2010
• Docket Number: No. 07-40747,07-40747
• Citation: 627 F.3d 161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose A. GARZA-ROBLES, also known as Jose Alberto Garza-Robles, also known as Betio, also known as Beto; Hector Herrera-Sifuentes, also known as Checo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

627 F.3d 161

UNITED STATES of America, Plaintiff-Appellee,

v.Jose A. GARZA-ROBLES, also known as Jose Alberto Garza-Robles, also known as Betio, also known as Beto; Hector Herrera-Sifuentes, also known as Checo, Defendants-Appellants.

No. 07-40747.

United States Court of Appeals, Fifth Circuit.

Nov. 29, 2010.

Roberto F. Ramirez, Asst. U.S. Atty. (argued), Laredo, TX, Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Clay Scott Conrad (argued), Looney & Conrad, Houston, TX, for Defendant-Appellant.

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

Before CLEMENT, SOUTHWICK and HAYNES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Two codefendants appeal from their convictions for kidnapping and conspiracy to kidnap. Both argue the evidence is insufficient to sustain their convictions, while one claims an error in sentencing. We AFFIRM.

FACTS

Ramone Santiago Hernandez, Jr. was a drug trafficker living in Laredo, Texas. In June 2006, Hernandez was in the border city of Miguel Aleman, Mexico, which is joined with Roma, Texas by a bridge over the Rio Grande. He was attempting to set up a drug transaction. While there, Hernandez met one of the defendants, Jose Garza-Robles. The latter introduced Hernandez to Eulalio Suarez-Sifuentes, who was known as "Lalo." Hernandez was aware that Lalo and Garza-Robles were members of a drug cartel known as the Gulf Cartel, and that Lalo was a high-ranking member.

Lalo and Hernandez developed a professional relationship-in a criminal sense. Eventually, Lalo asked Hernandez to obtain new customers in the United States for his marijuana. Hernandez arranged for the sale of about 650 pounds of marijuana to Samuel Gonzalez in Houston, Texas. Hernandez was to be a middleman in the transaction, delivering Lalo's drugs to Gonzalez and Gonzalez's money to Lalo. Prior to the delivery, Hernandez traveledto Houston and visited Gonzalez's house seven or eight times to determine whether Gonzalez could be trusted. After Hernandez met Gonzalez but before the marijuana was delivered, Lalo told Garza-Robles to go to Houston so that he could assist Hernandez with the transaction and protect Lalo's interest.

The marijuana shipment arrived in Houston in late August 2006. Hernandez loaded it into a Chevrolet Yukon belonging to Gonzalez's cousin. Gonzalez was not home when Garza-Robles and Hernandez arrived at night with the drugs. They parked the Yukon with its cargo in Gonzalez's garage, planning to return the next morning to collect $110,500 owed to Lalo.

The next day, the pair returned to Gonzalez's house and learned he had fled with his family, the Yukon, and the marijuana. Garza-Robles and Hernandez unsuccessfully searched for Gonzalez that day. In the afternoon, Garza-Robles finally called Lalo and explained what had occurred. When Hernandez got on the telephone, Lalo told him that he wanted both men to come to Mexico and explain the situation in person.

Later that night, Lalo called and initially spoke to both men on a speaker phone. At some point, Lalo told Garza-Robles to turn off the speaker phone, and the two spoke privately. While on the phone with Lalo, Garza-Robles turned to Hernandez and encouraged him to travel to Miguel Aleman, Mexico. Hernandez stated that he was scared to face Lalo. Garza-Robles said they would be in trouble and that he also was scared. They left for Mexico the next day. Lalo called several times while they were driving to ensure they were en route.

Along the way, Hernandez tried to arrange for police to arrest him so he would not have to face Lalo. Hernandez called the Texas state police from a rest area when Garza-Robles stopped to take a nap. He told the police officer that Garza-Robles had a small amount of drugs on him and gave the police the vehicle description and license plate number. Hernandez's attempts to be apprehended before entering Mexico were unsuccessful.

Prior to crossing the border, the two men stopped in Laredo so Hernandez could take a shower and change his clothes. At that time, Hernandez called his father who advised him to meet with Lalo to show good faith and to convince him of what happened. While in Laredo, Hernandez again told Garza-Robles that he did not want to see Lalo. Garza-Robles responded that they needed to explain the situation together.

On September 1, the two arrived at Lalo's estate in Miguel Aleman, Mexico, which was called Casa Amarilla. Between 10 and 15 heavily-armed men were present when Hernandez and Garza-Robles arrived. Among them was Lalo's cousin, the defendant Hector Herrera-Sifuentes. Lalo arrived a half-hour later armed with a machine gun and hand grenades. Lalo initially appeared friendly as Hernandez explained what happened. Lalo then told Hernandez he would have to pay $110,500 for the lost drugs, and that Hernandez could not leave until he paid. At Lalo's signal, the gates to Casa Amarilla shut. Lalo threatened Hernandez that his family would be killed if he left. He also instructed the guards to shoot Hernandez if he tried to escape.

During his 16-day detention, Hernandez was under constant guard. He was threatened and brutalized. The defendants Garza-Robles and Herrera-Sifuentes guarded Hernandez at various times during his detention. Both were present when Hernandez was blindfolded, hit in the face with a gun, kicked in theribs, and threatened with death while someone made the sign of a cross on him with a gun. Because he was blindfolded, Hernandez did not know which guards were beating him. Among other forms of abuse, he was punched and kicked, beaten with two-by-fours across his bare buttocks, sliced behind the ear with razors, wrapped in plastic wrap and beaten, had a gun shoved in his mouth, and had guns fired very close to his ears.

While detained, Hernandez was permitted to use his cell phone to arrange payments to Lalo. Hernandez's father collected $57,500 of Hernandez's money but understandably refused to take it to Mexico. On September 2, Lalo sent Garza-Robles to get the money from Hernandez's father in Roma, Texas. The payment was collected without incident. Hernandez also arranged for his girlfriend in Texas to make another payment on September 16. Lalo sent another of his operatives, Licensiado, to meet Hernandez's girlfriend in Roma and escort her and the money to Miguel Aleman.

At some point between the two payments, Hernandez's family notified the FBI that he was being held for ransom in Mexico. Prior to their entering Mexico, the FBI detained Hernandez's girlfriend and Licensiado. The FBI had Licensiado call Lalo to tell him they were detained and that the FBI knew Lalo was holding Hernandez. After first pretending to be confused, Lalo eventually permitted Hernandez to walk across the international bridge from Miguel Aleman to Roma.

Lalo instructed Hernandez to tell the FBI that he had not been kidnapped and warned Hernandez that Lalo would come after him if he did not return to Miguel Aleman with the rest of the money. Hernandez agreed to follow Lalo's instructions and return with the money. FBI agents met Hernandez halfway across the bridge, searched him for weapons, and brought him to Laredo for debriefing. Hernandez agreed to cooperate with the FBI.

At the FBI's direction, Hernandez told Lalo over the telephone he would return to pay the remainder of the debt. Lalo explained that he was in trouble with his drug cartel superiors. They thought Hernandez had paid Lalo $200,000 for the missing marijuana. His superiors also were upset that Lalo did not seek permission for the kidnapping. Lalo told Hernandez to return to Miguel Aleman and explain that he had not been kidnapped and that he only had paid $57,500. Lalo informed Hernandez he would send Herrera-Sifuentes to Laredo and bring Hernandez back to Miguel Aleman. Herrera-Sifuentes and Garza-Robles traveled to Laredo to pick up Hernandez. As the meeting was about to start, the FBI moved in and arrested the defendants.

Both defendants were charged with kidnapping and conspiring to kidnap Hernandez in foreign commerce from the United States to Mexico. See 18 U.S.C. § 1201. Garza-Robles also was charged with receipt of ransom money. See id. § 1202. They were jointly tried and convicted on all counts. They received life sentences for the kidnapping and conspiracy convictions. Garza-Robles received an additional 120-month sentence to run concurrently with his life sentence for the receipt of ransom money conviction. Both filed timely notices of appeal.

DISCUSSION

A. Sufficiency of the Evidence

Garza-Robles and Herrera-Sifuentes challenge the sufficiency of the evidence supporting their convictions for kidnapping and conspiracy.

Where defendants have preserved a challenge to the sufficiency of the evidence, as Garza-Robles and Herrera-Sifuentes have, we review the denial of a judgment of acquittal de novo. United States v. Burns, 162 F.3d 840, 847 (5th Cir.1998) (citation omitted). We determine whether, when viewing the evidence in the light most favorable to the verdict, "a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt." United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.2000).

1. Kidnapping

The elements under this kidnapping statute are: "(1) the transportation in interstate [or foreign] commerce (2) of an unconsenting person who is (3) held for ransom or reward or otherwise, (4) such acts being done knowingly and willfully." United States v. Barton, 257 F.3d 433, 439 (5th Cir.2001) (citation omitted); see 18 U.S.C. § 1201(a)(1). There must be proof that the victim was unlawfully seized, confined, inveigled, kidnapped, abducted, or carried away. 18 U.S.C. § 1201(a). Lack of consent is the only element in dispute.

The Government had to show Hernandez was transported in foreign commerce after he was seized or confined involuntarily in some manner. See United States v. McRary, ...