U.S. v. Razo-Leora, RAZO-LEORA and E

• Citation: 961 F.2d 1140
• Decision Date: 15 May 1992
• Docket Number: No. 91-2144,RAZO-LEORA and E,91-2144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hectorugenio Balderas, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1140

961 F.2d 1140

UNITED STATES of America, Plaintiff-Appellee, v. Hector RAZO-LEORA and Eugenio Balderas, Jr., Defendants-Appellants.

No. 91-2144.

United States Court of Appeals, Fifth Circuit.

May 15, 1992.

Rehearing Denied June 12, 1992.

Joel M. Androphy, Berg & Androphy, Houston, Tex., for Razo-Leora.

Alexander Bunin, Edward A. Mallett, Houston, Tex., for Balderas.

Paul W. Hobby, Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

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

Before KING, JOHNSON and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendants, Hector Razo-Leora and Eugenio Balderas, appeal their convictions on various charges relating to a murder-for-hire conspiracy. We affirm.

I.

In June 1988 in Houston, Texas, agents of the Drug Enforcement Agency arrested fourteen individuals, including Baldemar Garcia. Garcia was a longtime drug dealer who immediately began cooperating with law enforcement officials. Evidence Garcia provided led to the October 1988 arrest and indictment of defendant Razo-Leora's brother, Antonio Razo, for possession of cocaine with intent to distribute it. Trial was set for January 1989. Garcia was scheduled to testify at Razo's trial and at the December 1988 trial of the fourteen individuals arrested in June. Antonio Razo believed that Garcia's information was responsible for his arrest.

Fermin Cabello lived in Houston for several months in 1981, when he met Eugenio Balderas, Jr. Balderas was an acquaintance of Antonio Razo's. When Cabello left Houston, he moved back to Chicago, where he had lived before moving to Texas. During a visit to Houston about two years before the events at issue in this case, someone pointed out Hector Razo-Leora to Cabello as Balderas's brother-in-law. Cabello had no other contact with Razo-Leora. In early December 1988, Balderas contacted Cabello and told him that he was having some problems and needed Cabello's help. He sent Cabello money for an airline ticket to Houston. When Cabello arrived in Houston on December 9, Balderas picked him up at the airport and explained that Balderas and others wanted Cabello to murder Garcia for "snitching."

Balderas and Cabello spent several hours that night unsuccessfully looking for Garcia's house. At about 3 a.m., they gave up for the evening and went to Balderas's house. There, Balderas offered Cabello $5,000 to kill Garcia. Balderas showed Cabello a .357 magnum pistol and gave him a car to use for the weekend and money for a hotel room. The following morning, Cabello tried to locate Garcia's house on his own. When he could not, he returned to Balderas' house and the two men searched for the house together. Balderas had given Cabello the .357 magnum by this time and Cabello had the pistol with him as they searched. Again unable to locate Garcia's house, they went to El Charrito, a restaurant owned by Balderas's sister Norma, for lunch. Later, they returned to Balderas's house and then to the hotel in which Cabello had stayed the night before. Balderas had a nine millimeter pistol with him while at the hotel that Saturday night.

The next morning, Sunday, December 11, Cabello again tried unsuccessfully to locate Garcia's house. He then went to Balderas's house and told Balderas that he had to return to work on Monday in Chicago. After telling Cabello to be patient, Balderas made some phone calls trying to find the house. Balderas told Cabello that he was calling a person named Eddie and Balderas's compadre, Hector. A common meaning of the Spanish word "compadre" is godparent. A short time later, two people arrived at Balderas's house. Balderas left with them for about forty-five minutes, and when he returned he told Cabello that Eddie had shown him where Garcia lived. Balderas gave Cabello directions and told him that Garcia drove a blue pick-up truck. Even with these new directions, Cabello still could not find Garcia's house. He called Balderas, who picked Cabello up, drove him to the house and returned him to the car he had been using. After Balderas left, Cabello drove back to Garcia's house where he could see a blue pick-up but could not determine whether Garcia was there. Cabello went back to Balderas's house.

Balderas told Cabello he would call his "cunado," or brother-in-law. After making the call, Balderas told Cabello that it was Garcia's habit to get up at 6 a.m. Balderas gave Cabello $50, and Cabello drove back to Garcia's house where he noticed the blue truck was gone. Cabello went to get some food and make a phone call. He returned to Garcia's street and parked in a lot down the block from the house. A short while later, the blue pick-up drove by and pulled into Garcia's driveway. Cabello followed the truck, parked and got out of his car. When the driver of the pick-up got out of the truck, Cabello yelled out, "Baldo." Garcia turned toward Cabello and Cabello shot him six times.

As Cabello left the scene of the shooting, he ran a stop sign. A Harris County Deputy Sheriff pulled him over, found the gun and realized from the smell that it had been fired recently. He arrested Cabello. Later, tests confirmed that this .357 magnum was the gun which had killed Garcia and that Cabello had fired the gun. Cabello was indicted for murder by the state. Antonio Razo and another man, Eddie Pries, provided bond for Cabello, who returned to Chicago. Cabello was later indicted on federal firearms charges and was returned to Houston. Cabello agreed to plead guilty to the firearms charges and cooperate with the government so that his federal and state sentences would run concurrently.

Balderas's contacts with Cabello continued after Cabello's arrest. Federal agents recorded two conversations between Cabello and Balderas. The first was a telephone call during which Cabello complained that he had not been told that Garcia was a federal witness. Cabello asked if Hector could put some money away for Cabello while he was in prison. Balderas said he had not known Garcia was a federal witness and told Cabello not to talk about it on the telephone. Later, federal agents videotaped a meeting between Cabello and Balderas at a hotel. Cabello again complained of not knowing about Garcia's federal witness status and Balderas again said he had not known of it. Cabello stated that Hector must have known, and Balderas agreed that Hector probably did know. Cabello asked if Hector was going to put away some money for him and Balderas responded that it would be taken care of.

Balderas and Razo-Leora were indicted in August 1989 and charged with conspiring to travel in and use interstate commerce facilities in the commission of a murder for hire (Count 1), in violation of 18 U.S.C. §§ 2, 371 and 1958. Balderas was also indicted on four additional counts: aiding and abetting others to cause Cabello to travel in interstate commerce with the intent that Cabello commit a murder for hire, in violation of 18 U.S.C. §§ 2 and 1958 (Count 2); perjury before a grand jury, in violation of 18 U.S.C. § 1623 (Count 3); solicitation of Cabello to commit murder for hire, in violation of 18 U.S.C. § 373 (Count 4); and using and carrying firearms during and in relation to the commission of the offenses identified in counts 1 and 2 (Count 5).

A jury convicted Razo-Leora on count 1 and Balderas on all five counts. The court sentenced Razo-Leora to sixty months in prison and three years of supervised release. In addition, the district court ordered him to pay a special $50 assessment and to make restitution to Garcia's widow of $100,000. Balderas was sentenced to a total of 360 months in jail and five years of supervised release, and was ordered to pay a special assessment of $250. The defendants appeal their convictions on each count. Both defendants argue that the evidence was insufficient to support their convictions. In addition, Razo-Leora contends that the district court erred in ordering him to make restitution to the victim's family and Balderas contends that the district court erred in its instruction to the jury on two of the counts against him. We consider each of these arguments below.

II.

A.

We begin our analysis with the issues raised by Razo-Leora. He argues first that the evidence is insufficient to support the verdict. In reviewing this claim, we consider "whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Edelman, 873 F.2d 791, 793 (5th Cir.1989). Also, we must view the evidence, and all inferences reasonably drawn from it, in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 461, 86 L.Ed. 680 (1942); United States v. Hopkins, 916 F.2d 207, 212 (5th Cir.1990); United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.1989).

To establish a conspiracy in violation of 18 U.S.C. § 371, ¹ the Government must prove three things: 1) an agreement between the defendant and one or more other persons to violate a law of the United States; 2) an overt act by one of the conspirators in furtherance of the conspiracy; and 3) the intent on the part of the defendant to further an unlawful objective of the conspiracy. United States v. Hopkins, 916 F.2d at 212.

We now turn to the evidence the government relies on to support Razo-Leora's single count of conviction, conspiracy to violate § 1958. The primary evidence against Razo-Leora is the testimony of two Government witnesses. The first is the gunman Cabello. According to Cabello, while Balderas and Cabello were trying to locate Garcia, Balderas sought directions by making a telephone call to Balderas's "compadre Hector." This Spanish term "compadre" is frequently used to mean "godparent." The evidence showed that Razo-Leora and Balderas's sister Norma were the godparents of one of Balderas's children. Later that day, a few hours...