U.S. v. Vallejo
| Decision Date | 16 July 2002 |
| Docket Number | No. 00-15998.,00-15998. |
| Citation | 297 F.3d 1154 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George A. VALLEJO, Claudio Alejandro Carmona, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benson B. Weintraub, Law offices of Benson Weintraub, Fort Lauderdale, FL, Anthony J. Natale, Anthony J. Natale, P.A., Jonathan R. Kaplan, Kaplan & Hutchinson, P.A., West Palm Beach, FL, for Defendants-Appellants.
Anne R. Schultz, Emily Smachetti, Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT, COX and BRIGHT*, Circuit Judges.
Appellants Claudio Carmona, George Vallejo, Anthony Gainer, and Anthony Genovese were charged with various criminal acts related to the extortion of three owners of a West Palm Beach nightclub. Carmona and Vallejo appeal their convictions and sentences for conspiracy in violation of 18 U.S.C. § 371; extortion in violation of 18 U.S.C. § 1951(a); mail fraud in violation of 18 U.S.C. § 1341; and money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1957. Gainer appeals his conviction and sentence for conspiracy in violation of 18 U.S.C. § 371 and extortion in violation of 18 U.S.C. §§ 1951(a) and 2. Genovese appeals his conviction for conspiracy in violation of 18 U.S.C. § 371 and mail fraud in violation of 18 U.S.C. § 1341.
We affirm each conviction and sentence with the exception of Anthony Gainer's sentence which we vacate and remand to the district court for resentencing consistent with this opinion.
In May 1996, James Layson, George Desimone and Claudio Carmona purchased a restaurant business known as Ruby, Inc. Layson testified that Ruby, Inc. originally operated as a restaurant during the days and evenings and as a dance club called Bell Bottoms on the weekends. As the club became more popular, the owners decided to phase out the restaurant and purchase a less restrictive liquor license so they could run Bell Bottoms solely as a dance club. Layson and Carmona purchased a new liquor license for approximately $50,000. Layson testified that, in late 1996, Carmona expressed an interest in leaving the partnership. Around March 1997, Layson and Desimone secured new investors, Scott Jaspon and Craig Zuckerman, who agreed to purchase Carmona's share for $30,000. Carmona's name, however, remained on the liquor license because Layson owed him money from a previous personal loan. According to Layson, Carmona had no involvement with Bell Bottoms past March 1997.
Layson testified that on June 19, 1998, Carmona contacted Layson and informed him that he wanted to meet Layson at Bell Bottoms that evening. Layson assumed Carmona wished to collect the money Layson owed him and that Carmona would sign the papers to transfer the liquor license. When Layson arrived at the club that evening, two large men, later identified as Algernon Anderson and Gainer, grabbed him and held him against his will. A man Layson recognized as George Vallejo searched the contents of Layson's briefcase, while Anthony Jackson searched him for weapons. Layson testified that he saw Carmona sitting at a nearby table and tried to ask him what was happening and if this concerned the money he owed him. One of the men holding Layson repeatedly warned him to "shut up, don't move, don't talk," while another stood next to him brandishing a "flapjack kind of weapon" in his hand. Layson noticed Mike Yetter, one of the bartenders at Bell Bottoms, sitting nearby.
Yetter arrived at Bell Bottoms before the above-described events took place. At trial, Yetter testified that when he arrived at Bell Bottoms, he noticed that the locks had been tampered with and turned around to call the police. Before he could do so, a man Yetter did not recognize told him that his boss was inside. As Yetter moved towards the door, the man shoved him through the door where two other men grabbed him and held him off the ground. Yetter testified that Jackson held a machete to his throat while Vallejo ordered the two men to frisk him for weapons. After searching him for weapons, one of the men escorted Yetter to a hallway in the back of the club where he was told to sit. Layson arrived a few minutes later.
Layson testified that he eventually sat down at the table with Carmona and asked again if this was about the money he owed Carmona. Carmona stated that he was upset at the recent radio advertisement for Bell Bottoms, which, according to Carmona, showed disrespect for a nightclub called Darkside that Carmona and his brother, Fernando, owned. Carmona asked Layson to have Jaspon and Desimone meet them at Bell Bottoms. At that point, Layson stated that he left Bell Bottoms and walked next door to Montana's, a restaurant in which he had an interest and was scheduled to open up that evening.
Layson testified that he did not know whether to call the police because he feared that Carmona or someone associated with Carmona would seriously harm or kill him or his family. Jaspon and Desimone arrived at Bell Bottoms while Layson and Yetter were next door at Montana's. Layson then joined Jaspon, Desimone and Carmona at Bell Bottoms. Layson and Jaspon testified that Carmona informed them that they were to sign the club over to him and he in return would pay each of them $1,000 per month for thirty months. Layson testified that Carmona and Vallejo told Jaspon, Desimone, and Layson that the papers had to be signed that night.
Layson, Jaspon and Desimone left to discuss their options at Montana's. While all of this was going on, Bell Bottoms' employees began to arrive for work. Carmona told the employees that they were fired. Carmona testified that he and Vallejo had arranged for a new staff to come in and run Bell Bottoms that evening.
Layson and Jaspon testified that they agreed to sign the documents transferring ownership of Bell Bottoms to Carmona because they feared for their lives and personal safety. They each signed a promissory note and a bill of sale. Layson additionally signed a third document that purported to transfer Bell Bottoms' liquor license to Carmona. Anthony Genovese, a notary commissioned in the State of Florida, notarized the documents. Layson and Jaspon testified that Genovese notarized some of the documents before they were signed. Carmona later realized that the documents were deficient. He created a new set of documents, and forged Layson, Desimone and Jaspon's signatures. Genovese also notarized these documents.
Carmona and Vallejo opened a nightclub called "Club Alibi" at the location formerly occupied by Bell Bottoms. On June 22, 1998, three days after the takeover, local law enforcement closed Club Alibi because it did not have the required occupational licenses. Approximately one week after the takeover, Carmona submitted documents, notarized by Genovese, to Consolidated Capital seeking a $38,000 loan. As collateral, Carmona put up the liquor license that Layson had been forced to sign over on June 19, 1998. On June 30, 1998, Carmona submitted an application, notarized by Genovese, to transfer the liquor license to his name. Between June 30, 1998 and July 8, 1998, various documents related to the loan and fraudulent transfer of ownership of Bell Bottoms were mailed via United States Parcel Service and United States Postal Service.
In April 1999, police arrested Carmona, Vallejo, Genovese, Anderson and Gainer. Gainer admitted that he was present at Bell Bottoms on June 19, 1998, and that Vallejo had called him earlier that evening to tell him that they were going to open the nightclub. Gainer also stated that his physical presence made Layson, Desimone and Jaspon very nervous, and he believed that was why they agreed to the takeover.
During the prosecution's case, Detective Frazier, a government witness, made an improper statement regarding appellants' post-arrest silence. The district court granted appellants' motion for mistrial and immediately scheduled jury selection for a new trial.
Appellants subsequently waived their right to trial by jury and agreed to proceed with a bench trial. The bench trial began on February 17, 2000, with the government resting its case later that day. The appellants made Rule 29 motions for acquittal at the close of the government's case and prior to closing argument, which the district court denied.
The district court found Carmona, Vallejo, Gainer and Genovese guilty, but acquitted Anderson of all counts. The district court found Carmona guilty of conspiracy, extortion, mail fraud and money laundering and sentenced him to 60, 120, and 168 months imprisonment to be served concurrently. The court also placed him on supervised release for three years. The district court sentenced Vallejo to 60, 120, and 144 months imprisonment to be served concurrently and placed him on supervised release for three years. The district court found Genovese guilty of conspiracy and mail fraud and sentenced him to twenty-four months incarceration for each count to be served concurrently and three years supervised release. Finally, the district court found Gainer guilty of conspiracy and extortion and sentenced him to sixty and ninety-six months to be served concurrently, and three years supervised release. The district court further ordered all four defendants to jointly and severally pay restitution in the amount of $345,000.
On appeal, appellants argue that the Double Jeopardy Clause barred their retrial because the government's conduct left them with no choice but to request a mistrial. The Double Jeopardy Clause does not bar retrial after the grant of a defendant's motion for mistrial unless the prosecution intentionally goaded the defendant into moving for a mistrial. United States v. Fern, 155 F.3d 1318,...
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