U.S. v. De Parias

Decision Date15 December 1986
Docket NumberNo. 85-5683,85-5683
Citation805 F.2d 1447
Parties22 Fed. R. Evid. Serv. 263 UNITED STATES of America, Plaintiff-Appellee, v. Julita De PARIAS, Jessie Ramirez, a/k/a Marzelo Romdom, a/k/a Norbey Duque Garcia and "Jessid", Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Leon D. Kellner, U.S. Atty., Gregory Kehoe, Asst. U.S. Atty., Miami, Fla., for U.S.

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

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA *, Senior Circuit Judge.

JOHNSON, Circuit Judge:

I

FACTS

This case involves an appeal by two co-defendants--Julita De Parias and Jessie Ramirez--from a judgment entered on a conviction of conspiracy to commit extortion and of extortion, in violation of 18 U.S.C.A. Secs. 1951 and 2.

On August 7, 1984, Julita De Parias, Jessie Ramirez and Julio De Parias kidnapped Mario Portela, the son of Jesus Portela. Jesus Portela is the president and owner of P & D Developers, Inc., a housing construction company engaged in interstate commerce. The kidnapping was in revenge for an "insult" that Jesus Portela had inflicted on the De Pariases' sister Lenore. Lenore had bought a condominium from P & D Developers but subsequently sought to revoke her sales contract because she thought the interest rate was too high. Jesus Portela supposedly insulted her when he refused to revoke the contract even though she brandished a gun before him.

Over the next few days, Jesus Portela received a number of calls demanding a ransom. He finally agreed to pay a $1,000,000 ransom. Although Jesus Portela provided a small portion of the ransom from his personal assets, nearly $500,000 came from the assets of P & D Developers. P & D Developers borrowed the remaining $500,000 from PAS Developers, Inc., a construction company owned by Mario Portela's father-in-law. Jesus Portela assumed no personal liability for the funds from either P & D Developers or PAS Developers. The drop-off was unsuccessful because Jesus Portela was unable to drive his car into the rear parking lot of the El Viajante Restaurant as instructed to make the drop-off.

After the aborted drop-off, the three elicited the help of Hector De Parias. Hector De Parias guarded Mario Portela in a southwest Miami apartment while the others devised arrangements for a new drop-off. However, they never recontacted Jesus Portela, and after several days, Ramirez decided to kill Mario Portela. Ramirez completely wrapped Mario Portela's head in duct tape and beat his head with a chinning bar as he suffocated. After dumping the body in a ditch, Julita De Parias, Jessie Ramirez and Hector De Parias fled Florida but were eventually apprehended in Los Angeles. Julio De Parias has not been apprehended.

Defendants Julita De Parias and Jessie Ramirez were indicted for conspiracy to commit extortion and for extortion under the Hobbs Act. They made several pretrial motions to suppress evidence which were denied. The jury convicted them on both counts. They each were imprisoned for two consecutive twenty-year sentences and were fined $20,000.

II

DISCUSSION
A. Jurisdiction

We first discuss whether federal jurisdiction exists over the kidnapping and demand for ransom. Conviction under the Hobbs Act requires proof of three elements: (1) that the defendant coerced the victim to part with property; (2) that the coercion occurred through the "wrongful use of actual or threatened force, violence or fear or under color of official right"; and (3) that the coercion occurred in such a way as to affect adversely interstate commerce. United States v. Smalley, 754 F.2d 944, 947 (11th Cir.1985). The defendants contend that the government failed to establish the third element--the nexus between the extortion and interstate commerce. They argue that Jesus Portela, and not P & D Developers, was the object of the extortion; therefore, no federal jurisdiction exists over the charged activity.

A kidnapping and a subsequent demand for ransom from individuals can affect interstate commerce sufficiently to invoke the Hobbs Act. For example, in United States v. Carpenter, 611 F.2d 113, 114-15 (5th Cir.) cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980), the defendants kidnapped the son of the president and vice-president of a bank. Although the defendants demanded ransom from the parents, the fact that a large ransom was demanded, that the parents as officers of the bank had access to the bank's funds, and that the bank's assets were used to pay the ransom established that both the parents and the bank were the object of the extortion. In such circumstances, jurisdiction under the Hobbs Act existed. Similarly in United States v. Johnson, 516 F.2d 209, 214-15 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975), the court held that the abduction of a bank president's wife and the subsequent demand for ransom from her husband affected interstate commerce. In so holding, the court emphasized that the defendants chose the bank president because he had access to the bank's funds, that the ransom demand was made on a Friday when the bank was likely to have abundant cash on hand, and that the bank paid the ransom without any promissory note from its president.

Furthermore, the government need not prove that the kidnappers acted with the specific intent to affect interstate commerce. Instead, the government need prove only that their actions were likely to cause an entity engaged in interstate commerce to pay the ransom. Carpenter, 611 F.2d at 114-15; United States v. Gupton, 495 F.2d 550, 551 (5th Cir.1974). Also, this Court will affirm a jury's finding of an effect on interstate commerce if that finding is supported by substantial evidence, taking the view most favorable to the government. Glasser v. United States, 315 U.S. 60, 68, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942); United States v. Malatesta, 590 F.2d 1379, 1381-82 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777, and 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979).

The cases cited by the defendants are not to the contrary. In United States v. Mattson, 671 F.2d 1020, 1024-25 (7th Cir.1982), the court held that the payoff demanded from an individual taking an electrical supervisor's test did not affect interstate commerce. However, the victim used personal assets to make the payoff, and his employer never reimbursed him. Likewise in United States v. Kaye, 593 F.Supp. 193, 197-99 (N.D.Ill.1984), the court held that a payoff did not affect interstate commerce because the victim made the payment from personal assets and from a personal loan. Furthermore, the indictment charged only the individual as the object of the extortion and failed to charge his employer as an object as well. Thus, these cases do not hold that an entity engaged in interstate commerce cannot be the object of extortion also directed towards an individual. Rather, they hold that extortion directed against an individual does not affect interstate commerce where the payoff does not deplete the assets of an entity engaged in interstate commerce and no other connection with interstate commerce exists.

The defendants' reliance on United States v. Jarabek, 726 F.2d 889 (1st Cir.1984), is similarly misplaced. In Jarabek, the president of a company made payoffs to local officials from his personal assets only. Nonetheless, the court held that the payoffs affected interstate commerce because the president made them to protect his company. The defendants argue that Jarabek shows that the source of the funds used to make a payoff is irrelevant in establishing jurisdiction under the Hobbs Act; therefore, jurisdiction does not exist in this case merely because P & D Developers provided the money for the ransom. The defendants' reading of Jarabek is overbroad. It is well accepted that the use of the assets of an entity engaged in interstate commerce in order to make a payoff constitutes an effect on interstate commerce. United States v. Jackson, 748 F.2d 1535, 1537-38 (11th Cir.1984); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir.1984). Jarabek merely holds that the use of such assets is not necessary to establish a nexus with interstate commerce.

Here there was sufficient evidence to support the jury's finding of an effect on interstate commerce. The defendants concede that P & D Developers is an entity engaged in interstate commerce. Jesus Portela had access to the assets of P & D Developers and was likely to need those assets to pay the $1,000,000 ransom. P & D Developers provided the funds for the ransom without any personal obligation from Portela. Furthermore, the defendants kidnapped Mario Portela as revenge for the insult they believed Lenore De Parias suffered in her dealings with Jesus Portela and P & D Developers. Finally, the indictment charged that both Jesus Portela and P & D Developers were the objects of the extortion. Based on this evidence, a jury properly could have concluded that both Jesus Portela and P & D Developers were the likely objects of the extortion. Consequently, jurisdiction exists under the Hobbs Act.

B. Limitation of Cross-Examination

Julita De Parias argues that the district court committed reversible error in refusing to allow her to cross-examine Hector De Parias as to the portion of his plea agreement concerning an unrelated murder in Texas. 1 As part of his plea agreement with federal authorities, Hector De Parias agreed to plead guilty to federal extortion charges and to a murder charge brought by Florida. The government agreed, inter alia, to recommend an incarceration period of not more than twelve years and to petition Texas authorities not to prosecute him for an unrelated murder. Hector De Parias was freely cross-examined concerning the plea agreement...

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