U.S. v. Gonzalez-Sanchez

• Decision Date: 31 July 1987
• Docket Number: Nos. 85-2003,D,PARRILLA-MARQUE,GONZALEZ-SANCHE,s. 85-2003
• Citation: 825 F.2d 572
• Parties: 23 Fed. R. Evid. Serv. 641 UNITED STATES of America, Appellee, v. Pedro M.efendant, Appellant. UNITED STATES of America, Appellee, v. Carlos LATORRE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Manuelefendant, Appellant. to 85-2005.
• Court: U.S. Court of Appeals — First Circuit

Page 572

825 F.2d 572

23 Fed. R. Evid. Serv. 641

UNITED STATES of America, Appellee, v. Pedro M. GONZALEZ-SANCHEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Carlos LATORRE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Manuel PARRILLA-MARQUEZ, Defendant, Appellant.

Nos. 85-2003 to 85-2005.

United States Court of Appeals First Circuit.

Argued Feb. 3, 1987.

Decided July 31, 1987.

Victor Amador, San Juan, P.R., for appellant, Pedro Gonzalez-Sanchez.

Stanley L. Feldstein, Old San Juan, P.R., for appellant, Carlos Latorre.

Carlos R. Noriega, Hato Rey, P.R., for appellant Manuel Parrilla-Marquez.

Sylvia Royce, U.S. Dept. of Justice, with whom Earl E. Shamwell, Crim. Div., Gen. Litigation and Legal Advice Section, U.S. Dept. of Justice, Washington, D.C., and Daniel F. Lopez Romo, Hato Rey, P.R., were on brief, for appellee, U.S.

Before WISDOM, ^* Senior Circuit Judge, BOWNES and TORRUELLA, Circuit Judges.

WISDOM, Senior Circuit Judge:

The defendants appeal their convictions for federal offenses committed in connection with the burning of a building owned by the R & S Sales Corporation, (R & S), a wholesale dry goods business in Bayamon, Puerto Rico. Carlos Latorre, Pedro Gonzalez Sanchez, and Manuel Parrilla Marquez were indicted and convicted for conspiracy to commit an offense or fraud against the United States. 18 U.S.C. Sec. 371. Gonzalez was indicted and convicted also for aiding and abetting mail fraud. 18 U.S.C. Secs. 2 & 1341. The defendants were found guilty of all charges. We affirm, except with regard to the appeal of Manuel Parrilla Marquez.

I. FACTS

According to the United States Attorney, Wilfredo Rivera Diaz, owner of R & S, was a member of the "Latorre gang". This gang was a criminal organization in Puerto Rico headed by Jose Luis ("El Cano") Latorre. The gang hijacked vans, stored the goods at their warehouses, and resold the goods to established businesses. It also arranged to have certain businesses "torched" to collect insurance, sometimes on merchandise that had been removed before the fire or had never been received. Soon after acquiring the R & S, which was financially distressed, Rivera Diaz had his manager renegotiate and renew the fire insurance policy for the business with the Puerto Rican American Insurance Company (PRAICO). The policy provided coverage for the warehouse, the inventory, the office contents, and losses from "business interruption". About one month later, during the early morning hours of October 7, 1981, a series of violent explosions and a fire completely destroyed the buildings.

The insurance company, PRAICO, suspected arson. Although the warehouse appeared to have been empty the night of the fire, large claims were submitted for goods alleged to have been delivered to the warehouse just before the fire. Further investigation showed a link between this fire and three other recent fires. The Caribbean International, also owned by Rivera Diaz, had burned one year earlier. Claims totalling $600,000 had been filed against PRAICO, the insurer of that business. Just two months before the Caribbean fire, another fire had destroyed the Magnolia Pharmacy, a business owned by Rafael Gilberto Latorre, brother of "El Cano" Latorre. Six months before the Magnolia fire, fire destroyed the Eleven International, which was managed by Rivera Diaz and owned by members of the Latorre gang. The investigation of these fires, the resulting insurance claims, and other illegal activities of the Latorre gang resulted in the indictment and trial of numerous members and accomplices of the gang. The three defendants in this action were tried for their part in the conspiracy to burn the R & S building and defraud its insurer, PRAICO.

The government identified defendant Carlos Latorre as the "torcher" for the gang. Carlos Latorre is the brother of gang boss "El Cano" Latorre. The evidence overwhelmingly showed that he started the fire that destroyed the R & S building. Indeed, he had placed so much gasoline in the warehouse that he was seriously burned from the explosion that occurred when he lit the fire. The government's investigation implicated Latorre also in the Caribbean International fire and in the thefts of merchandise from tractor-trailer vans, another of the gang's illegal activities. Carlos Latorre entered into a plea agreement with the government. In return for pleading guilty to conspiracy and theft from interstate shipment and for promising to cooperate fully and honestly in the investigation and prosecution of the Caribbean International and R & S cases, the government promised that it would not prosecute him for his role in the two other cases. Because his testimony in the Caribbean International trial differed from his earlier statements to government agents, the United States Attorney rescinded the plea agreement and indicted him in the present case.

Pedro Gonzalez Sanchez was the gang's lawyer. He prepared and assisted in the preparation of false and inflated claims against the fire insurers of the Caribbean International, the Magnolia Pharmacy, and R & S Sales. One witness testified that Gonzalez advised the members of the gang to burn down the Caribbean International to solve its financial problems. When Latorre was seriously burned in the R & S fire, Gonzalez helped bring Latorre to a hospital. At the hospital, Gonzalez suggested an alibi for Latorre's injuries: that Latorre was accidently burned in a fire on a friend's boat. The alibi was false; the boat identified by Latorre had never been involved in a fire. Gonzalez assisted in preparing the fraudulent insurance claims against PRAICO, the insurer of R & S. Concerned that PRAICO would become suspicious because he had also filed claims with PRAICO for the Caribbean International fire, he hired a young attorney to sign and forward the claims for losses from the R & S fire.

The third defendant, Manuel Parrilla Marquez, was a high-ranking police officer in Puerto Rico with alleged ties to the Latorre gang. The government introduced evidence that Parrilla accepted bribes to impede investigations into the theft of vans, the arson of the Caribbean International, and the arson of R & S sales. A witness testified that Parrilla had agreed to testify favorably for the gang in a civil suit to collect insurance from the fire insurer of the Eleven International. Parrilla was tried, earlier, for his alleged participation in the Caribbean International arson conspiracy, but was acquitted.

II. BREACH OF PLEA AGREEMENT

Before the commencement of trial, Latorre moved for the dismissal of the charges against him because of his plea agreement with the government. The government had promised not to prosecute Latorre for his role in the R & S arson in exchange for Latorre's plea in another case and his promise to cooperate in the investigation and prosecution of the Caribbean and R & S cases. At a hearing on the motion, the government presented evidence to show that Latorre failed to cooperate fully and honestly in giving testimony at the Caribbean trial because he testified differently from his earlier statements to government agents. The trial court found that Latorre had breached his agreement, thereby releasing the government from its obligation to refrain from prosecuting him. Examining Latorre's challenges, we find no clear error in the trial court's finding and affirm its decision.

When a defendant has entered into a plea agreement with the government, the court must ensure that he receives what is reasonably due him under the agreement. ¹ Contractual principles apply insofar as they are relevant in determining what the government "owes" the defendant. ² If the defendant lives up to his end of the bargain, the government is bound to its promises. ³ On the other hand, if the defendant fails to fulfill his promises, the government is released from its agreement and may indict and try the defendant regardless of whatever it may have promised earlier. ⁴ As in this case, the failure of the defendant to fulfill his promise to cooperate and testify fully and honestly releases the government from the plea agreement. ⁵

Latorre argues that he is entitled to a jury trial on the question of whether he breached his plea agreement. He contends that a jury determination is necessary to protect the important constitutional concerns associated with plea bargaining. All recognize the constitutional right of a defendant to enforce plea agreements. ⁶ This Circuit and others have set forth safeguards to insure that the government does not arbitrarily or capriciously disregard its obligations under a plea agreement. When the government seeks to revoke a plea agreement, it must demonstrate to the trial court that the defendant has not fulfilled his promises. If disputed facts exist, the trial court must hold an evidentiary hearing. ⁷ The government bears the burden of demonstrating by adequate evidence that there has been a substantial breach. ⁸ The factual determination whether the plea agreement has been breached lies with the trial judge. ⁹ Latorre received the process that was due; he is not entitled to a jury determination of the question.

We review the finding of the trial court for clear error. ¹⁰ The government's evidence showed that Latorre changed his statements. In a statement to FBI agents, Latorre described the burning of the Caribbean International. He stated that Edgardo Giorgi set the fire. At Giorgi's trial, Latorre testified that he set the fire and that Giorgi's only participation was in waiting nearby. Faced with Latorre's surprise testimony, the United States Attorney had to "impeach" its own witness with his prior inconsistent statements to show Giorgi's direct involvement in the Caribbean arson. At the hearing on Latorre's motion to dismiss, Latorre admitted that his earlier statement to FBI agents was wrong and that he, not Giorgi, set the fire. The trial judge's finding that...