U.S. v. Lacayo, 84-5005

• Decision Date: 30 April 1985
• Docket Number: No. 84-5005,84-5005
• Citation: 758 F.2d 1559
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador LACAYO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1559

758 F.2d 1559

UNITED STATES of America, Plaintiff-Appellee, v. Salvador LACAYO, Jr., Defendant-Appellant.

No. 84-5005.

United States Court of Appeals Eleventh Circuit.

April 30, 1985.

Michael G. Smith, Ft. Lauderdale, Fla. (Court appointed), for defendant-appellant.

Stanley Marcus, U.S. Atty., Frederick Mann, Linda Collins-Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

FAY, Circuit Judge:

Appellant challenges his conviction for conspiracy to kidnap, 18 U.S.C. Sec. 1201(a), and aiding and abetting a kidnapping, 18 U.S.C. Secs. 1201(c) and 2, on the following grounds: (1) denial of due process and a fair trial because of the district court's refusal to disclose to the jury that the government reserved the right to make a specific recommendation as to the sentences imposed on two co-defendants; (2) abuse of discretion in admitting certain extrinsic act evidence; (3) prosecutorial misconduct in making certain remarks in opening statement; and (4) admitting prejudicial evidence that the victim's family had been involved in prior kidnappings and showing appellant's involvement with the Colombian Mafia. We affirm.

I. FACTUAL BACKGROUND

This case involves the kidnapping of Mrs. Quinonez, the wife of Roberto Quinonez, the former Ambassador of El Salvador, from her home in Miami, Florida on July 8, 1983. Mrs. Quinonez was abducted by Juan Caceres, Craig Blas, and three young men recruited by Blas in Washington, D.C. to help in the abduction. The plot was masterminded by appellant Lacayo.

Caceres and Lacayo had met in 1980, when the two men attempted to put together a business deal, which ultimately fell through. Subsequently, appellant Lacayo proposed another venture, that is, that Caceres travel with him to Europe to redeem, at a favorable rate, some "victory notes" issued during WW II. Caceres ultimately was swindled out of advance money he put up for the deal. As a result, he lost his home in Guatemala and moved to Alexandria, Virginia with his family.

Sometime in 1982, Lacayo proposed kidnapping Roberto Quinonez for ransom, and suggested to Caceres that Mr. Quinonez was responsible for the fact that he and Caceres had lost their money in the "victory notes" deal. Sometime in January or February of 1983, Caceres travelled from his home in Alexandria, Virginia, to Miami, Florida, to meet with appellant to discuss the plans for the kidnapping. Lacayo advised Caceres of certain personal habits and traits of Mr. Quinonez and they followed him about town, staking out his residence and office. It was then decided that Caceres would return home and enlist the abductors for the kidnapping.

Upon his return to Virginia, Caceres enrolled his friend, Craig Blas, to recruit the abductors. Blas found three individuals to assist in the kidnapping: Mack Carr, Robert Anthony Gerald and Clifford Bibbs. ¹ It was agreed that Blas, Carr, Gerald and Bibbs would abduct Mr. Quinonez' wife and hold her until the ransom was paid; Caceres would be in charge of communications, instructing the victim's relatives on what to do and relaying information and instructions to the abductors; and Lacayo, who supposedly knew the victim's family and was aware of their activities, would observe the transfer of the ransom money. Each would be paid handsomely for his role in the operation.

On July 3, 1983, Caceres, Blas, Carr, Gerald and Bibbs travelled from Washington, D.C. and arrived in the Miami area on July 4, 1983. From July 4, 1983 until July 8, 1983, the group staked out the Quinonez residence, following the victim and her husband about town, discussing the details of the plot. Caceres met with appellant on several occasions to discuss the procedure that would be followed. Lacayo suggested that Caceres stay at an apartment that he had access to and gave Caceres his key to the apartment and instructed him on how to use the telephone and what to tell Mr. Quinonez once his wife was abducted.

On Friday afternoon, July 8, 1983, while returning home from work, Mrs. Quinonez was abducted by Blas, Carr, Gerald and Bibbs. She was assaulted, tied, and placed on the floor of the car. Prior to tying her up, her abductors asked for her husband's telephone number, which she wrote down on an envelope. Mrs. Quinonez was then driven to Washington, D.C., where she was kept at the apartment of Jennifer Brown, Mack Carr's girlfriend. Blas gave Caceres the telephone numbers for both the home and office of Mr. Quinonez. Prior to making his first ransom calls to Mr. Quinonez, Caceres was given Salvadoran slang words by Lacayo to be utilized in Caceres' ransom call to Mr. Quinonez, to make Quinonez believe that the abductor of his wife was one of a group of Salvadoran guerrillas. Caceres later telephoned Mr. Quinonez at his office and stated that his wife had been taken for a ransom of $1.5 million dollars.

Meanwhile, in Miami, appellant Lacayo and Caceres went to a shopping center on Saturday morning, July 9, 1983, and purchased a briefcase. The plan they developed was to obtain a briefcase just like the briefcase they would require Quinonez to use for the ransom money, and to fill it with newspapers. The two would be switched by Lacayo in a men's restroom at the Miami International Airport. The briefcase containing the newspapers would be sealed with a special seal, making it difficult to know when the switch had taken place.

A series of ransom calls were placed by Caceres during the week following the kidnapping. During this time, Mrs. Quinonez was still being held captive in the Washington, D.C. apartment. She was treated fairly well, until Blas became convinced that Caceres was bungling the operation, because the ransom money had yet to be paid. On Thursday, July 14, 1983, Blas called Mr. Quinonez himself and demanded payment of the ransom money. That same evening, Blas and his cohorts took the victim to a public pay phone, so that she could call her husband to assure him she was still alive. At that point, the FBI, who had the group under surveillance, rescued Mrs. Quinonez.

II. THE LAW

A. The Giglio Issue

Appellant contends that he was denied due process of law because the district court refused to disclose to the jury that the government had reserved the right to make a specific recommendation as to the sentences imposed on co-defendants Caceres and Blas, who testified at trial. Each pled guilty to one count of conspiracy to kidnap prior to trial. Prior to their testimony, counsel for appellant moved for disclosure of any "deals" made by the government with the co-defendants in exchange for their cooperation. The prosecutor responded:

The government has reserved the right to advise the Court of any cooperation of [Blas] and to make a specific recommendation as to the sentence, but there have been no promises to [Blas] or no deals or accommodations other than the exchange of the government's intention to dismiss the other counts in the indictment after [Blas'] change of plea to conspiracy ... I believe I told Mr. Cullen, the defense attorney, that the government would take upon itself to apprise the court of any cooperation from [Blas] now a witness, at the time of his sentencing. That was never a condition to the change of plea. That was simply a representation that the government made.

R.Vol. 13 at 1602-03.

At oral argument, counsel for the government, who tried the case in the district court, assured us that no deal had been made and that the government uniformly reserves the right to make a recommendation as to sentencing.

Appellant's assertion of error rests on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in which the Supreme Court held that a convicted defendant is entitled to a new trial if he can establish that the government failed to correct materially false testimony relevant to the testimony of a key prosecution witness, including evidence of a prior "deal" between that witness and the government. To warrant a new trial, the agreement of leniency must have been reached prior to the witnesses' testimony. United States v. Ramirez, 608 F.2d 1261, 1266 (9th Cir.1979). We do not believe that appellant has shown us any direct, or, for that matter, any convincing indirect, evidence of promises of leniency in exchange for testimony. See United States v. Baskes, 649 F.2d 471, 476-77 (7th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1706, 68 L.Ed.2d 201 (1981). In fact, we note that after the court imposed a sentence of seventeen years imprisonment as to Caceres and three years imprisonment as to Caceres' wife, the government opposed defendants' subsequent motions to reduce those sentences. The government's reservation of the right to make a recommendation at sentencing appears to us to be a fairly standard procedure. At Blas' sentencing hearing, the government recommended that Blas be sentenced under the Youth Corrections Act, noting Blas' cooperation, which was "motivated [not] simply to better himself, but to make some atonement for what he ... had done. R.Vol. 1 at 10 (2d Supp. Record). The government, however, did not recommend a specific number of years, as the government felt that Blas was slightly more culpable than some of his accomplices. We conclude that appellant has not presented evidence of a promise of leniency as to either of the two co-defendants who testified against appellant: there accordingly has been no denial of due process of law.

B. Extrinsic Act Evidence

Appellant contends that the district court erred in admitting extrinsic act evidence showing that appellant and Caceres were involved in a prior drug deal and that appellant and Caceres were involved in a business venture, in which Caceres was defrauded of $60,000.00. We do not find any abuse of discretion in the admission of this evidence. Under...