U.S. v. Rodriguez

• Decision Date: 22 February 1991
• Docket Number: No. 89-3605,89-3605
• Citation: 925 F.2d 1049
• Parties: 32 Fed. R. Evid. Serv. 384 UNITED STATES of America, Plaintiff-Appellee, v. Dennis RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1049

925 F.2d 1049

32 Fed. R. Evid. Serv. 384

UNITED STATES of America, Plaintiff-Appellee, v. Dennis RODRIGUEZ, Defendant-Appellant.

No. 89-3605.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 13, 1990.

Decided Feb. 22, 1991.

Patrick S. Layng, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Nathan Diamond-Falk, Chicago, Ill., for defendant-appellant.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Dennis Rodriguez was indicted for violating 18 U.S.C. Sec. 371 (conspiracy), 18 U.S.C. Sec. 2114 (robbery of a United States Postal Service letter carrier), and 18 U.S.C. Sec. 924(c)(1) (use of a firearm in a crime of violence). After a jury trial, he was convicted on all three counts. On appeal, Mr. Rodriguez claims that the prosecution failed to prove specified elements of the charged offenses, challenges the admissibility of certain evidence, and contends that the prosecution's summation prejudiced his right to a fair trial. For the following reasons, we affirm the convictions.

I BACKGROUND

Mr. Rodriguez was a member of the Imperial Gangsters, a Chicago street gang, with the rank of "enforcer." Tr. of July 25, 1989 at 216. One duty of an enforcer was to "discipline" lower-ranked members, or "soldiers," for "[n]ot following orders." Id. On February 8, 1988, Mr. Rodriguez "flagged ... down" an automobile driven by Jose DeLeon, a soldier in the same gang. Id. at 219. Mr. Rodriguez asked if DeLeon "wanted to make some easy money," and explained that he wanted to take keys from a postal carrier because the leader of their gang "had them sold to a big coke connect [sic]." Id. at 223-24. (Mr. Rodriguez later explained to DeLeon that the keys would be used to facilitate the transfer of cocaine by dropping it in a mailbox.) DeLeon initially told Mr. Rodriguez that he wished to "pick up some girls," but immediately changed his mind after Mr. Rodriguez told him to forget those plans. Id. at 224.

After driving around for some time in DeLeon's car, the pair spotted Postal Service letter carrier Edward Pyrzynski. Mr. Rodriguez wanted DeLeon to "snatch the keys," but, after DeLeon indicated that the victim was "too big" for him, agreed that Mr. Pyrzynski carried his keys inside his pocket, attached to a chain that in turn was attached to his belt by a leather loop. Mr. Rodriguez grabbed the key chain, pulled it once or twice, and "popped the loop on the holder." Id. at 133, 238. Mr. Rodriguez immediately began to flee with Mr. Pyrzynski in pursuit. The two ran past DeLeon. Before the carrier gave up his brief chase, he heard Mr. Rodriguez and DeLeon talking to each other in Spanish. Mr. DeLeon, who still carried the gun that Mr. Rodriguez had given him, encouraged the latter "to stop and knock the mailman out." Id. at 240. As Mr. Pyrzynski began to return to his mail cart, he confronted DeLeon. The latter threatened Mr. Pyrzynski with the gun in a successful effort to escape. DeLeon immediately met up with Mr. Rodriguez again, and the pair went to deliver the keys to the leader of their gang.

                he himself would do it while DeLeon "watch[ed] his back."    Id. at 232.  Mr. Rodriguez gave DeLeon a gun and told him that it was loaded.  Both men then left the car, with Mr. Rodriguez approaching the carrier from behind and DeLeon standing fifteen feet away
                

During the next week, Mr. Pyrzynski made several attempts to help produce a composite picture of the person who took his keys and to identify him through books of photographs of gang members. On February 15, 1988, he identified a photograph of the person who grabbed his keys in a book of mug shots of members of the Imperial Gangsters. Based on that identification, Postal Inspector Gerard Tokarski determined Mr. Rodriguez's address. On the morning of February 17, 1988, Inspector Tokarski and a Chicago police officer went to Mr. Rodriguez's apartment. A woman who identified herself as Kathy Rodriguez allowed them to enter the apartment, but told them that her husband's name was Juan, not Dennis. Later that same day, Inspector Tokarski, a second postal inspector, and two police officers returned to the apartment. About thirty seconds after one of the officers knocked on the door, Kathy Rodriguez opened the door and said, " 'My Dennis just jumped out the window. He's laying in the street.' " Tr. of July 26, 1989 at 349. Inspector Tokarski then found Mr. Rodriguez in an alley outside his apartment building. Mr. Rodriguez was taken to a hospital. A short time later, Mr. Pyrzynski was called to the hospital, where he identified Mr. Rodriguez as the man who had taken his keys.

Based on these events, Mr. Rodriguez was indicted for conspiracy, robbery of a Postal Service letter carrier, and use of a firearm in the commission of a crime of violence. ¹ The jury convicted Mr. Rodriguez on all three counts, and the district court sentenced him to sixty months on each count. The sentences for counts one and two were to run concurrently; the sentence on count three was to run consecutively.

II ANALYSIS

A. Sufficiency of the Evidence

Mr. Rodriguez contends that the government failed to establish two of the elements required to sustain his conviction under 18 U.S.C. Sec. 2114 (robbery of a United States Postal Service letter carrier): use of force or intimidation in the taking of the keys (the robbery element), and placing the victim's life in jeopardy through use of a deadly weapon (the aggravated robbery element). ² When this court reviews a challenge to the sufficiency of the evidence, it must affirm a conviction if, "viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis supplied by Jackson Court)); accord United States v. Williams, 910 F.2d 1574, 1577 (7th Cir.1990).

1. The robbery element

The statute itself does not define robbery. However, in a case involving 18 U.S.C.A. Sec. 320, an earlier version of the statute, the Fourth Circuit held that "[t]he word 'rob' is used in its common law sense, that is, it involves the taking, animo furandi, and asportation of property from the person of another against his will by violence or putting him in fear." Costner v. United States, 139 F.2d 429, 431 (4th Cir.1943) (citing Harrison v. United States, 163 U.S. 140, 16 S.Ct. 961, 41 L.Ed. 104 (1896)).

Although the amount of force or violence used to take the keys from Mr. Pyrzynski was rather minimal, there was sufficient evidence for a rational trier of fact to conclude that a robbery did occur. ³ Mr. Pyrzynski's key chain was attached to his clothing, and Mr. Rodriguez had to pull the chain once or perhaps twice to snatch the keys. Courts have upheld robbery convictions when the item taken is "so attached to the person or his clothes as to require some force to effect its removal." 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law Sec. 8.11(d)(1) at 446 (1986) (citing cases). ⁴

2. The aggravated robbery element

We also must reject Mr. Rodriguez's contention that the government failed to prove the aggravated robbery element because "[t]he taking of the keys had already been accomplished and the crime completed when DeLeon threatened the letter carrier with the gun." Appellant's Br. at 14. Although DeLeon testified that he took the gun out of his sweater pocket only after Mr. Pyrzynski stopped chasing Mr. Rodriguez, DeLeon was armed and standing nearby, watching Mr. Rodriguez's back, from the moment the incident began. Indeed, Mr. Rodriguez had brought the weapon to the scene and given it to his confederate to carry in the confrontation with Mr. Pyrzynski. The ready availability of the gun likely emboldened Mr. Rodriguez and DeLeon, even if, at first, the gun was not drawn. ⁵ Certainly, the presence of the weapon under these circumstances put Mr. Pyrzynski's "life in jeopardy." 18 U.S.C. Sec. 2114. The government is not obliged to prove that a gun held by the perpetrator of a postal robbery is pointed at the victim, just as it is not obliged to prove "that the gun was actually loaded or that the perpetrator of the crime was disposed to use the weapon. The use of a gun is per se sufficient cause to impose the enhanced sentence." United States v. Parker, 542 F.2d 932, 934 (5th Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51 L.Ed.2d 597 (1977). Because Mr. Rodriguez was convicted of conspiracy, the jury could properly attribute to him any of the acts committed by his co-conspirator, DeLeon, who pled guilty to robbery. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Galiffa, 734 F.2d 306, 313-14 (7th Cir.1984); cf. United States v. Osborne, 630 F.2d 374, 379 (5th Cir.1980) ("if one of the appellants put life in jeopardy, the other was criminally responsible"), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981).

B. Gang Membership

Prior to the selection of jurors, Mr. Rodriguez's counsel made motions in limine to keep out evidence of gang involvement in the crime and of Mr. Rodriguez's street gang membership. An assistant United States attorney (AUSA) argued that allegations regarding gang involvement were "inextricably interwoven" with other aspects of the case. Tr. of July 25, 1989 at 22. The court denied the motions.

Mr. Rodriguez repeats on appeal his challenge to the admission of evidence of his gang membership. Our review of such "rulings is limited to whether the district court abused its discretion." United States v. Degaglia, 913 F.2d 372, 375 (7th Cir.1990) (citing United States v. McNeese, 901 F.2d 585, 598 (7th Cir.1990); United States...