U.S. v. Rosario-Diaz, ROSARIO-DIA

• Decision Date: 05 November 1999
• Docket Number: MELENDEZ-GARCI,No. 98-2151,DEFENDAN,No. 99-1015,N,BAEZ-JURAD,A,No. 98-2153,APPELLANT,LOPEZ-MORALE,ROSARIO-DIA,98-2151,98-2153,99-1015
• Citation: 202 F.3d 54
• Parties: (1st Cir. 2000) UNITED STATES, PLAINTIFF, APPELLEE, v. RALPH/K/A JUNI, DEFENDANT, APPELLANT. UNITED STATES, PLAINTIFF, APPELLEE, v. WILSON MONTALVO ORTIZ, A/K/A WILLIE BARBER, DEFENDANT, APPELLANT. UNITED STATES, PLAINTIFF, APPELLEE, v. JUAN ANTONIO/K/A PAPO, DEFENDANT, APPELLANT. UNITED STATES, PLAINTIFF, APPELLEE, v. WILFREDO UNITED STATES, PLAINTIFF, APPELLEE, v. ADAo. 98-2152,o. 98-2328, . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 54

202 F.3d 54 (1st Cir. 2000)

UNITED STATES, PLAINTIFF, APPELLEE, v. RALPH ROSARIO-DIAZ, A/K/A JUNI, DEFENDANT, APPELLANT.

UNITED STATES, PLAINTIFF, APPELLEE, v. WILSON MONTALVO ORTIZ, A/K/A WILLIE BARBER, DEFENDANT, APPELLANT.

UNITED STATES, PLAINTIFF, APPELLEE, v. JUAN ANTONIO BAEZ-JURADO, A/K/A PAPO, DEFENDANT, APPELLANT.

UNITED STATES, PLAINTIFF, APPELLEE, v. WILFREDO LOPEZ-MORALES, DEFENDANT, APPELLANT.

UNITED STATES, PLAINTIFF, APPELLEE, v. ADA MELENDEZ-GARCIA, DEFENDANT, APPELLANT.

No. 98-2151, No. 98-2152, No. 98-2153, No. 98-2328, No. 99-1015.

U.S. Court of Appeals, First Circuit.

Heard Nov. 5, 1999.

Decided January 31, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Dominguez, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Rachel Brill and Bruce J. McGiverin, by appointment of the Court, were on consolidated brief, for appellants Ralph Rosario-Diaz and Wilson Montalvo-Ortiz.

Lydia Lizarribar-Masini and Ramon Garcia, by appointment of the Court, were on consolidated brief, for appellants Juan Antonio Baez-Jurado and Ada Melendez-Garcia.

Vilma Maria Dapena, by appointment of the Court, with whom Dapena & Dapena Law Offices was on brief, for appellant Wilfredo Lopez-Morales.

Sonia I. Torres, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief, Criminal Division, and Camille Velez-Rive, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Campbell and Wallace,^* Senior Circuit Judges.

Torruella, Chief Judge.

Ralph Rosario-Diaz, Wilson Montalvo-Ortiz, Ada Melendez-Garcia, Juan Baez-Jurado, and Wilfredo Lopez-Morales were each convicted on both counts of a grand jury indictment charging them with (1) aiding and abetting each other in a carjacking that resulted in the death of the victim, in violation of 18 U.S.C. §§ 2 & 2119(3); and (2) conspiring to commit that carjacking, in violation of 18 U.S.C. § 371. The district court sentenced each defendant to life in prison on each count, the sentences to run concurrently. All five defendants now appeal.

Because we hold that appellants Rosario-Diaz and Montalvo-Ortiz did not have the requisite foreknowledge that a carjacking crime was to be committed, their convictions must be set aside. We affirm the convictions of appellants Melendez-Garcia, Baez-Jurado, and Lopez-Morales, although we remand for resentencing on their conspiracy convictions.

I. BACKGROUND

A. The Conspiracy and the Carjacking

On June 9, 1995, defendants Ralph Rosario-Diaz and Wilson Montalvo-Ortiz placed a telephone call to Gregorio Aponte-Laz£, who would later be a co-defendant in this case and ultimately the government's star cooperating witness. Rosario-Diaz informed Aponte-Laz£ that Aponte-Laz£'s brother-in-law, Fonsi, a runner in Rosario-Diaz's drug ring, had been killed the preceding day. Rosario-Diaz told Aponte-Laz£ that among Fonsi's belongings had been found a list of persons who they believed to have Fonsi's drug money. The list included the name of Edna Rivera-Hernandez.

Rosario-Diaz told Aponte-Laz£ that he had a job for him--to find Edna and retrieve the $200,000 she was thought to have. In exchange, Aponte-Laz£ would receive $25,000. If Edna should refuse to return the money, Aponte-Laz£ was to kill her and make it look like a robbery. To facilitate the crime, Rosario-Diaz provided Aponte-Laz£ with several pieces of information, including Edna's address, the color and make of her car, as well as some of the numbers of the car's license plate. He also told Aponte-Laz£ that Edna studied at the American City College (ACC), where Rosario-Diaz and Montalvo-Ortiz worked.

On Tuesday, June 13, 1995, Rosario-Diaz pointed Edna out to Aponte-Laz£ at the ACC. At that point, Rosario-Diaz, Montalvo-Ortiz, and Aponte-Laz£ discussed the planned participation of defendant Juan Baez-Jurado. Rosario-Diaz explained that Aponte-Laz£ was to meet Baez-Jurado the following Friday, June 16, 1995. Montalvo-Ortiz instructed Aponte-Laz£ not to rape Edna, but stated that he should kill her if necessary.

On Friday, June 16, 1995, as planned, Aponte-Laz£ met Baez-Jurado in a local plaza. With Aponte-Laz£ was defendant Ada Melendez-Garcia, who also knew Baez-Jurado. The three agreed that they would carry out their contract on Tuesday, June 20, 1995. Baez-Jurado agreed to bring a firearm.

On the appointed day, Aponte-Laz£ met in the plaza with Melendez-Garcia, who had her son with her due to a field day at the elementary school. Aponte-Laz£ then went to the ACC, where Rosario-Diaz informed him that Edna would be at a doctor's appointment that day, rather than at the college. Aponte-Laz£ expressed his feeling that the crime would therefore be easier, because they would not have to go to Edna's house. Montalvo-Ortiz, however, warned Aponte-Laz£ to be careful because a law enforcement drug division was located near the doctor's office.

Aponte-Laz£ and Melendez-Garcia returned to the town plaza, where Baez-Jurado was waiting with defendant Wilfredo Lopez-Morales, whom Melendez-Garcia said she knew. Baez-Jurado informed them that he had not brought a weapon as they had planned. The five of them, Aponte-Laz£, Melendez-Garcia, her son Victor, Baez-Jurado, and Lopez-Morales, then walked the streets near the plaza. They saw Edna, who got out of her car and entered a pediatrician's office with her four-month-old baby. Aponte-Laz£ and the others went to a nearby supermarket and purchased a knife.

Eventually, Edna exited the doctor's office and moved towards her car, pushing her baby in a stroller. Aponte-Laz£, Melendez-Garcia, and Victor approached the car at the same time as Edna, complimenting and inquiring about her baby. When Edna had placed her car key in the car door, Aponte-Laz£ put the knife to her ribs. Baez-Jurado and Lopez-Morales appeared, and Edna was forced into the back seat with them and Victor.

Aponte-Laz£ drove the car away from the plaza. From Edna's purse, appellants removed twenty-six dollars in cash and a bank card, the access code for which Edna divulged before she was killed. Aponte-Laz£ asked Edna for the $200,000, but she responded that she did not have it and that she had returned it to Fonsi before he was killed. At Aponte-Laz£'s instruction, Melendez-Garcia then slapped Edna.

After leaving the plaza area, Aponte-Laz£ stopped to purchase crack, marijuana, and heroin. Aponte-Laz£, Baez-Jurado, and Lopez-Morales consumed the drugs in the car as they drove. Meanwhile, they continued to slap Edna and threatened to kill her baby.

Near the Guayanez River, the car became stuck in a sugar cane bank, and Aponte-Laz£, Baez-Jurado, Lopez-Morales, and Edna exited the car. While Melendez-Garcia sat in the car with Edna's baby, the rest of the group went to a secluded area surrounded by bamboo trees, and Edna was ordered to sit on a towel. While Edna protested that she had returned all the money, she was asked intimate questions by Aponte-Laz£ while Baez-Jurado wielded the knife. Aponte-Laz£, Baez-Jurado, and Lopez-Morales then each raped Edna and even placed young Victor on top of her naked body in a grotesque simulation of their acts.

After the rapes, Edna was ordered to put her clothes back on. While threatening to kill her baby, Aponte-Laz£, Baez-Jurado, and Lopez-Morales beat Edna with their fists and with a bamboo stick. Aponte-Laz£ then ordered Lopez-Morales to drag Edna to the river, presumably to drown her. When Edna resisted, Aponte-Laz£ told Baez-Jurado to help. Baez-Jurado entered the river and slit Edna's throat. They left her body in the river, where it was found decapitated on July 7, 1995.

After killing Edna, Aponte-Laz£ and appellants managed to extract the car from the sugar cane bank and fled the area. Aponte-Laz£ telephoned Rosario-Diaz and informed him that Edna was dead but that they still had her car and her baby. Rosario-Diaz instructed them to leave the car and baby at a safe place.

Aponte-Laz£ and Melendez-Garcia attempted unsuccessfully to use Edna's bank card at a retail store. Aponte-Laz£ and appellants then drove to the city of Gurabo, where Aponte-Laz£ was able to withdraw seventy dollars from Edna's account.

Aponte-Laz£ and the appellants next drove to Caguas Central, where Edna's baby began to cry. When Melendez-Garcia tried to feed the baby some juice, it choked. Aponte-Laz£ and appellants drove to the Caguas Municipal Hospital, where the baby was examined and released. When Aponte-Laz£ and Melendez-Garcia exited the hospital, however, Baez-Jurado had left the group. The remaining four proceeded to Melendez-Garcia's house, where Melendez-Garcia bathed and fed the baby.

Later that evening, Aponte-Laz£ and Lopez-Morales drove the baby to Luquillo. On the way, they had a minor accident, but they finally arrived in Luquillo, where the baby was abandoned in front of a residence.

That same evening, Edna's husband and his brother began to search for Edna. On the highway, they spotted her car, driven by Aponte-Laz£, and gave chase. Edna's husband was able to turn off the ignition of Edna's car using a spare remote control for the car's alarm system. When Edna's car stopped, Aponte-Laz£ ran away but was apprehended by the husband and his brother. Edna's ring and bracelet were found on Aponte-Laz£'s person. When the police arrived, the knife and a photo of Aponte-Laz£ were found in Edna's car.

B. The Investigation and Trial

On June 15, 1995, after being apprehended by Edna's husband, Aponte-Laz£ gave the first of several inconsistent statements to law enforcement. Among those statements was the assertion that Lopez-Morales had had nothing to do with the crime, which the government claimed at trial was made in an attempt to gain the release of Lopez-Morales so that Lopez-Morales could murder the government's witnesses. Subsequent...