U.S. v. Mojica-Baez

Decision Date08 June 2000
Docket NumberMOJICA-BAE,APPELLANT,LANDA-RIVER,No. 98-2349,CARTAGENA-MERCE,N,REYES-HERNANDE,DEFENDAN,RAMOS-CARTAGEN,No. 98-2352,98-2349,98-2352
Citation229 F.3d 292
Parties(1st Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, V. JOHN ALEXIS UNITED STATES OF AMERICA, APPELLEE, V. JOSUE G. UNITED STATES OF AMERICA, APPELLEE, V. RODOLFO E. UNITED STATES OF AMERICA, APPELLEE, V. NELSON UNITED STATES OF AMERICA, APPELLEE, V. JOSEo. 98-2350,o. 98-2353 Heard
CourtU.S. Court of Appeals — First Circuit

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District Judge] [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Robin J. Adler for appellant Mojica-Baez.

David W. Roman, with whom Brown & Ubarri was on brief, for appellant Reyes-Hernandez.

Rafael F. Castro Lang for appellant Landa-Rivera.

Roberto Roldan-Burgos, by appointment of the court, for appellant Cartagena-Merced.

Miriam Ramos Grateroles for appellant Ramos-Cartagena.

Timothy L. Faerber and Nelson Perez-Sosa, Assistant United States Attorneys, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

Before Stahl and Lynch, Circuit Judges, and Gorton, District Judge.*

Lynch, Circuit Judge.

Three armed men dressed in security guard uniforms held up the Loomis, Fargo & Co. armored car depot in Ponce, Puerto Rico, on May 13, 1997, while a fourth robber stood watch outside. The robbers took the Loomis Fargo guards captive as they returned to the company's offices in armored vehicles from runs to area banks. All told, the robbers got away with an estimated $5.5 million. Only about half a million dollars was recovered; the weapons used were never recovered. Four of the five defendants involved in this appeal were convicted of the robbery and received sentences ranging from 308 months to 355 months; the fifth defendant was convicted of helping in the aftermath and was sentenced to 150 months imprisonment.

The defendants originally raised a myriad of arguments on appeal. In addition, after the Supreme Court decided United States v. Castillo, 120 S. Ct. 2090 (2000), we requested that the parties brief the effect of that decision. None of the defendants had raised at trial or on appeal a Castillo claim that the use of a semiautomatic assault weapon in the robbery was an element -- and not merely a sentencing factor -- of a firearms offense. See 18 U.S.C. § 924(c)(1)(A), (B). This is our first occasion to discuss the effects of Castillo on trials and indictments, and our view on the indictment issue is quite different from the view of another circuit. Save for one sentencing issue regarding one defendant -- as to which the government agrees that there was error and that the matter should be remanded -- we reject the defendants' arguments.

I.

The four main defendants are John Alexis Mojica-Baez, Josue G. Reyes-Hernandez, Nelson Cartagena-Merced, and Jose Ramos-Cartagena. After a trial lasting almost a month, they were convicted of committing the robbery. Specifically, all four of these defendants were convicted of two counts of armed robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (d); one count of assault, in violation of 18 U.S.C. §§ 2, 2114(a); one count of breaking and entering, in violation of 18 U.S.C. §§ 2, 2117; and one count of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1). Another co-defendant, Rodolfo E. Landa-Rivera, was convicted of being an accessory after the fact to the robbery, in violation of 18 U.S.C. §§ 3, 2113(a).1

The jury reasonably could have found the following facts. Loomis Fargo2 armored trucks and vans began arriving at the Loomis Fargo depot in Ponce shortly after 7 p.m. on May 13, 1997. The vehicles were returning with cash from the day's routes, which included a stop at a United States Post Office and two federally insured banks, Banco Popular and Banco Santander. When one of the guards from the first vehicle to arrive entered the depot office, he was met by three men carrying long firearms. They told him it was a hold up and that he was not to move or they would shoot him. The three were dressed in uniforms similar to Loomis Fargo uniforms and were wearing bulletproof vests. As four successive trucks arrived at the depot, the three men disarmed the guards, handcuffed them, and locked them in a bathroom. The contents of the Loomis Fargo vehicles were systematically transferred to a Loomis Fargo van commandeered by the robbers. A fourth person, outside, worked in tandem with the three fake guards, communicating with them by walkie-talkie.

The robbers were voluble, threatening the guards, telling them, "Last week we had to kill one guy, so you guys better do what we say." They also told the guards several times how powerful their weapons were, claiming, "This AK-47 that I have here can actually punch through 12 guys," and "This thing can even go through cement." One of the guards recognized a weapon as an AK-47 and heard one of the robbers say, "This is an AK-47, and if I shoot you with this, I'll rip you up. I'll just rip a part of you off." Another guard described the firearms carried by the robbers as "assault weapons, big weapons."

The robbers also commented on their professionalism. One of the guards testified that the robbers kept saying, "Look how professional we are. We're really professionals." The robbers reiterated that they were professionals, unlike the other robbers who had been quickly caught after a recent, unrelated Brinks robbery.

Once the Loomis Fargo van was loaded, the guard the robbers had forced to help them was trussed and pushed into the small bathroom that held nine other guards. The guards were then locked in and they heard the robbers threaten to set the place on fire. It took the guards about forty minutes to free themselves; they then called for help. The handcuffs had to be cut off of the guards, as the key holes had been soldered (or welded) closed.

The robbers drove the Loomis Fargo van to another location and transferred the money to a different vehicle, but they left thirty unopened bags of money in the Loomis Fargo van.

Evidence tied the defendants to the robbery almost immediately afterwards. When news of the robbery was broadcast on television, Ramos-Cartagena's wife, Jessica Vega-Coreano, told Jessica Diaz-Nevarro, a friend and upstairs neighbor, that Ramos-Cartagena and Reyes-Hernandez had committed the robbery. The evening of the robbery, Ramos-Cartagena and Reyes-Hernandez arrived back at Ramos-Cartagena's house driving a heavily laden van. Reyes-Hernandez was wearing a uniform similar to a Loomis Fargo uniform. Ramos-Cartagena ran into the house and asked Vega-Coreano for keys. He had a cut on his head and was shirtless. Vega-Coreano gave him a shirt to put on and asked why they had not gotten rid of the clothes, to which he responded, "Forget the shirt, I need the keys, I want the keys, because we have to leave." He found the keys and drove off. A short time later, Cartagena-Merced and Mojica-Baez arrived. Mojica-Baez appeared happy, and he embraced Vega-Coreano and said, "We did it. We did it" or "We won, we won." Cartagena-Merced also appeared to be happy.The robbery was, of course, planned in advance. According to Diaz-Nevarro, the defendants met almost daily during the two weeks prior the robbery. Diaz-Nevarro also saw Ramos-Cartagena, Mojica-Baez, and Reyes-Hernandez loading ammunition into two long and three short guns the day before the robbery. Landa-Rivera, who ultimately took some of the money to hide, was also seen around the house before the robbery.

A confidential informant reported to the FBI that before the robbery the defendants had stolen a van in the San Juan area. After the robbery, a white van containing veterinary products was found in a parking lot near the Loomis Fargo depot. The van had been stolen from a veterinary products distributor about a week before the robbery. Diaz-Nevarro testified to seeing similar veterinary products in Ramos-Cartagena's house, and, after having obtained warrants to search the defendants' homes (based upon information provided by the confidential informant), FBI agents found such products when they searched the house.

The searches of the defendants' homes produced a wealth of other incriminating evidence, including: $387,000 in cash buried near Mojica-Baez's uncle's house and $13,000 in cash inside the house;3 AK-47 ammunition and part of the barrel of an AR-15 assault rifle at Mojica-Baez's house; $2,500 in cash in a McDonald's bag hidden in a mattress and over $1,000 in a box and in a magazine at Cartagena-Merced's house; a photograph of Ramos-Cartagena holding an AK-47, AK-47 ammunition, police uniforms similar to Loomis Fargo uniforms, two ski masks, four boxes of two-way radios, some welding equipment, and wrappers from Banco Popular and Banco Santander at Ramos-Cartagena's house; wrappers from Banco Santander a bag containing almost $8,000 in cash, and a $45,000 check from the Lottery of Puerto Rico made out to Reyes-Hernandez's mother and issued a week after the robbery4 at Reyes-Hernandez's house; and a total of $8,800 in cash in Landa-Rivera's car.

After their homes were searched, Ramos-Cartagena, Reyes-Hernandez, Mojica-Baez, and Vega-Coreano traveled together to the Geminis Hotel and rented rooms there. From there they moved to the Joyuda Beach Parador Hotel, registering for three rooms under a false name.

Unable to contain themselves with the riches, some of the defendants went on spending sprees. The day after the robbery,...

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