U.S. v. Orisnord

• Decision Date: 11 April 2007
• Docket Number: No. 05-14659.,05-14659.
• Citation: 483 F.3d 1169
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fednert ORISNORD, Theodore Witherspoon, Bernard Donjoie, a.k.a. Jean Pierre, Joniel Polynice, Defendants-Appellants.

483 F.3d 1169

UNITED STATES of America, Plaintiff-Appellee, v. Fednert ORISNORD, Theodore Witherspoon, Bernard Donjoie, a.k.a. Jean Pierre, Joniel Polynice, Defendants-Appellants.

No. 05-14659.

United States Court of Appeals, Eleventh Circuit.

April 11, 2007.

Robin J. Farnsworth, Asst. Fed. Pub. Def., Robert N. Berube, Fed. Pub. Def., Fort Lauderdale, FL, Martin Alan Feigenbaum (Court-Appointed), Surfside, FL, Philip Robert Horowitz (Court-Appointed), Law Offic of Philip R. Horowitz, Gennaro Cariglio, Jr. (Court-Appointed), Law Office of Gennaro Cariglio, Jr., Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendants-Appellants.

Lisa T. Rubio, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

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

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Defendants-Appellants, Bernard Donjoie ("Bernard"), Fednert Orisnord ("Orisnord"), Joniel Polynice ("Polynice"), and Theodore Witherspoon ("Witherspoon") appeal their convictions for conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); conspiracy (Count 2) and attempt (Count 3) to possess with intent to distribute cocaine, both in violation of 21 U.S.C. § 846; using, carrying, and possessing a firearm during and in relation to a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4); and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 5), all in connection with a conspiracy to rob a narcotics stash house. Polynice, Witherspoon, and Bernard also appeal their sentences. For the reasons that follow, we reverse Witherspoon's firearm convictions, vacate his sentence, and remand to the district court for resentencing. We affirm the convictions and sentences of the remaining Appellants.

I. Background

In December of 2004, a confidential informant ("CI") informed federal agents from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") that Orisnord and others were interested in committing home invasion robberies of narcotics stash houses. Based on this tip, ATF Special Agent Michael Connors ("Connors"), acting undercover, met with Orisnord and the CI in Sunrise, Florida on December 29, 2004. Connors told Orisnord that he performed security for a Colombian drug organization, that his employers owned a cocaine stash house in Fort Lauderdale, and that he was looking for people to help him rob the stash house. Conners also told Orisnord that the stash house usually contained 20 to 25 kilograms of cocaine and that his Colombian bosses often moved the "stash" to different locations. Indicating that he had performed several robberies in the past, Orisnord agreed to assemble a team to rob the stash house. He also agreed to give Connors four kilograms of cocaine as his share of the robbery proceeds.

On January 6, 2005, Connors and the CI met with Orisnord and Sonny Hilaire, who Orisnord introduced as one of his "boys" who would be performing the "lick" with him. During a telephone conversation a few days later, Orisnord told Connors that there was a problem with Hilaire's participation, but that he was still interested in performing the robbery. On January 18, 2005, Connors called Orisnord and told him that a shipment of cocaine was arriving the next day. After Orisnord indicated that his team was ready, Orisnord and Connors scheduled the robbery for the night of January 19, 2005. The plan called for the CI to pick up Orisnord's robbery team in a vehicle ostensibly belonging to Connors' girlfriend. They would meet with Connors at an unspecified location to review the final details and wait for Connors' Colombian employers to call and give him the stash-house address. The team would then drive to the stash house in a rental car provided by Connors.

On January 19th, driving a BMW supplied by Connors that was equipped with video and audio recorders as well as a global-positioning-system transmitter, the CI picked up Orisnord and Witherspoon in Fort Lauderdale. They then drove to Pompano Beach to pick up Polynice. While in route to Pompano, the CI asked Witherspoon if he was "ready to get down." Witherspoon responded by saying "Yeah, damn right. [Orisnord] had told me about it like a couple of weeks ago." Witherspoon later said that he did not have a pistol, but that Orisnord told him not to worry because "we got that."

Once in Pompano, Polynice got into the BMW and both he and Witherspoon asked Orisnord to explain the plan. After Orisnord responded that Connors would explain everything, Polynice said that he was "ready to roll" and asked Orisnord if Orisnord had procured a gun for him. Orisnord responded that they would get pistols at a later time and that they would need three. Orisnord then explained that the plan was to "go over there, we gonna get the money and the dope, then we gonna get [Connors]. We gonna give [Connors] three keys¹ and we gonna keep the rest." Polynice responded, "Right now, we stand as one."

After returning to Fort Lauderdale, the CI, Orisnord, Polynice, and Witherspoon met Connors at a Hess gas station. Connors reiterated that the robbery was to occur that night, that the team was to follow him to an undisclosed location to await the call from the Colombians, and that they should have their firearms ready. Orisnord stated that the team did not have their firearms because he believed Connors merely wanted to meet the other team members at the Hess station. Orisnord also indicated that he thought the team would be given another vehicle and would then have a chance to procure their firearms. Orisnord then asked Connors to explain the robbery plan to Polynice and Witherspoon, and Connors did so. Polynice asked how many men would be in the stash house, and Connors explained that there would be two armed men. Polynice responded that Connors had told him all he needed to know. Orisnord reiterated that they would need three guns and said he needed five minutes to get his. Polynice stated that they had to get "the fire" and "the tools." During this exchange, Connors observed Witherspoon nodding in apparent understanding. When Witherspoon got back into the BMW, the CI asked him what was happening. Witherspoon responded that Connors' bosses were to "bring in dope," that there was a "house," and that there would be "20 to 25 keys" inside the house.

After the meeting with Connors, the CI, Orisnord, Witherspoon, and Polynice drove to Pompano. Upon arriving at a housing project, Orisnord entered an apartment occupied by approximately ten people and asked if anyone had seen "Sonny." Approximately 20 minutes later, the CI entered the same apartment and asked if anyone had seen "Face" (which was one of Orisnord's aliases). Addressing everyone in the apartment, including brothers Henry and Bernard Donjoie, the CI stated that a "big deal" with "a lot of money" was going down, that he was driving a BMW belonging to his boss's wife, and that anyone interested in the "deal" should accompany him to meet his boss to learn the details. Henry and Bernard accepted the invitation and joined the other team members to learn more about this "deal." Sometime later, the CI, Orisnord, Witherspoon, Polynice, and the Donjoies got into the BMW and traveled back to Fort Lauderdale to meet with the CI's boss (Connors) and discuss the "deal." Although no one mentioned firearms during the drive, Orisnord phoned Connors and said that they were now "all set."

Upon arriving in Fort Lauderdale, the team stopped at a Citgo gas station. Orisnord exited the BMW and conversed with the occupants of a Buick parked at the station. Orisnord then returned to the BMW, and both vehicles traveled to a Hess station where Connors awaited. When the vehicles entered the Hess parking lot, Connors pulled his car in front of the BMW and the Buick, and both vehicles followed Connors to a warehouse. Connors' vehicle and the BMW parked in the warehouse parking lot, while the Buick parked across the street. The CI and the other occupants of the BMW entered the warehouse with Connors.

Because the Donjoie brothers were the last to meet Connors, Orisnord instructed Connors to "[t]ell those two what's going on. Explain to them the deal." Connors explained that he worked security for Colombians who had a stash house containing 20 to 25 "keys," that there were two or three armed guards in the stash house, that the Colombians moved the stash around such that he did not yet know the address, and that once the Colombians phoned him to provide the address, the team would drive to the house and perform the robbery. Connors further explained that to conceal his involvement in the robbery, one of the crew members should strike him on the head. Henry asked Connors several questions about the plan, such as how many armed guards would be in the house; where "it" would be located; whether there were "more people to pick up more packages;" and where they would need to leave Connors' share. Once Connors answered those questions, Henry said that the "garage is the only way to go," and that the "shit is already in the house." At some point, Orisnord asked Connors how many "keys" he wanted, Connors responded that he wanted four, and Henry replied: "Four. That's fine. That's yours. That's guaranteed." Bernard also responded that Connors was "guaranteed that." After Connors instructed the team to place his four keys under the BMW, Henry said they would "put it in a trash bag" under the car. Bernard said that they would be "In and out and that's it." Connors then asked if the team "had enough fire to take care of it," and one of the team members responded "[d]on't you worry about that" because the "fire is in the car."

Based on these discussions, Agent Connors determined that the team members were capable of, and committed to, carrying out the robbery, and that none of them had evinced a clear desire to...