United States v. Caballero-Melgar
| Docket Number | 21-6036 |
| Decision Date | 31 July 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE SANTO CABALLERO-MELGAR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
Before: BOGGS, GIBBONS, and McKEAGUE, Circuit Judges.
Jorge Santo Caballero-Melgar ("Caballero-Melgar") was convicted of one count of illegal reentry after deportation and four counts related to a series of armed robberies including one that resulted in death. He was sentenced to 460 months' imprisonment. On appeal, Caballero-Melgar asserts errors in the trial proceedings, his conviction, and his sentence. He alleges insufficiency of the evidence, improper joinder, an error in the jury instructions, violation of his Sixth Amendment speedy trial right, improper denial of his motion for new counsel, and the procedural unreasonableness of his sentence. Because Caballero-Melgar fails to show any error, we affirm.
From December 23, 2016, through September 2, 2017, a series of fifteen armed robberies took place across Kentucky, North Carolina, Tennessee, and Indiana. Caballero-Melgar was involved in fourteen of the robberies. Only the March 17 2017 robbery of the La Placita grocery store in Bowling Green, Kentucky requires further detail here.
On the afternoon of March 17, 2017, three Honduran men-Caballero-Melgar, Jose Adan Mejia Varela ("Varela"), and Jonny Reyes-Martinez ("Reyes-Martinez")-arrived in Bowling Green. Reyes-Martinez testified that Caballero-Melgar had the idea to rob the La Placita grocery store. Caballero-Melgar knew both men because he had assisted Reyes-Martinez, a childhood friend, in coming to the United States earlier that year, and he had met Varela through Varela's brother.
The three men met in a Wal-Mart parking lot, where Caballero-Melgar gave Varela and Reyes-Martinez guns to use in the robbery. The pistol given to Reyes-Martinez was unloaded, but Caballero-Melgar had extra bullets in his car. According to Reyes-Martinez, it was Caballero-Melgar's idea to have a loaded firearm with which to "react" in case people in the store had weapons or the police arrived. DE 592, Trial Tr., Page ID 3427. The three men left the parking lot to drive to La Placita, and Caballero-Melgar stationed himself as lookout at a nearby gas station.
About an hour before the robbery, the wives of Caballero-Melgar and Varela both made money transfers at La Placita. After they drove away, Caballero-Melgar entered the store, made two money transfers, and walked out about thirty minutes before the robbery would occur.
Around 3 p.m., Reyes-Martinez and Varela entered the La Placita grocery store, locking the door behind them. Reyes-Martinez carried two phones, being on the line with Caballero-Melgar on one. The two men moved the employees near the cash register and bound them with duct tape. The son and daughter of one La Placita employee were in the store; the son was waiting for his father to pick him up.
After Reyes-Martinez and Varela found the money, one of the employees' phones started ringing. The men panicked and headed for the exit. As they unlocked the door to leave, the employee shouted that they were being robbed and a man who was waiting at the door to get in- Jose Cruz, the father of the employee's son-entered and heard the cries of the employees. Varela exited, but Reyes-Martinez and Cruz struggled. Varela re-entered the store to help Reyes-Martinez. During the struggle, Reyes-Martinez shot Cruz. Cruz died from the injury.
Reyes-Martinez and Varela ran out of the store to Reyes-Martinez's car and quickly left Bowling Green. When they returned to Madison, Tennessee, they met Caballero-Melgar in a Home Depot parking lot to split the money evenly. Reyes-Martinez testified that he and Varela returned the firearms used in the robbery to Caballero-Melgar, who later told Reyes-Martinez that he had shipped them back to Honduras.
The last of the robberies took place in September 2017 at the Mercadito La Luz, located in Snow Hill, North Carolina. All of the individuals who robbed the store-Varela, Elvin Sanchez, Junior Bueso, Jose Cedillo-Salles, and Jaime Cedillo-Sales-left in one car. Caballero-Melgar had acted as a lookout and called the men to make them aware that the police were pursuing them, but they were all arrested. Caballero-Melgar was arrested a few days later on a warrant issued in an unrelated case and remained in custody subject to an extradition warrant until federal charges were issued in this litigation.
In November 2017, a grand jury indicted Caballero-Melgar and his co-conspirators on one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), (b)(1), and (b)(3), and one count of murder through the use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(j). The government sought approval from the Department of Justice to proceed with a death penalty specification.
In February 2019, a superseding indictment was filed. It charged Caballero-Melgar with conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 1); conspiracy to use or carry a firearm during and in relation to robbery, 18 U.S.C. § 924(c) and (o) (Count 2); aiding and abetting the interference with commerce by robbery with actual or threatened force, 18 U.S.C. §§ 1951 and 2 (Count 3); murder through use of a firearm during a crime of violence, 18 U.S.C. § 924(c) and (j)(1) (Count 4); and illegal reentry after deportation, 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) (Count 5). Count 3 and Count 4 were both based on the La Placita robbery.
That same month, Caballero-Melgar, acting pro se, wrote to the district court and requested the replacement of his counsel. He stated that he had met with his counsel only once since his detention and that his counsel had not answered any of his numerous calls. Before the scheduled hearing on the motion, Caballero-Melgar's appointed counsel, Bryce Caldwell, responded that he and his co-counsel, Jeffrey Darling, had met with Caballero-Melgar, who no longer desired to remove them as counsel. At the hearing, Caballero-Melgar confirmed this interaction and his intent to maintain his current counsel. The district court ordered the sealed motion withdrawn.
In May 2019, the government notified the district court that it failed to obtain approval to seek the death penalty. More months passed, and Caballero-Melgar again wrote the district court a pro se letter in October 2019. He informed the district court that he had not received discovery from counsel, asserted that he was being held in violation of his speedy trial rights, and asked for release or return to Honduras. At the subsequent hearing, Caldwell informed the district court that he and Darling had not spoken with Caballero-Melgar since receiving his letter. Caldwell explained that he and Darling had reviewed the discovery related to the original indictment with Caballero-Melgar but had not received discovery related to the superseding indictment. He also stated that he and Darling had not investigated Caballero-Melgar's claims about inaccurate interview translations but were considering funding sources to do so. Aside from a language barrier, however, Caldwell had no issues representing Caballero-Melgar.
Caballero-Melgar then addressed the court. He stated that he did not "really have a complaint about [his counsel]" but that "the only reason [he] wrote to [the court] [was] to see if [the court] could help [him] in doing something so that the case could go along quicker." DE 611, Sealed Hearing Tr., Page ID 3730. Considering Caballero-Melgar's complaints as simply "frustration that we all feel" related to the discovery delays, id. at Page ID 3732, the district court urged counsel to contact the prosecution to express that frustration, reminded Caballero-Melgar that pro se motions unrelated to his representation could not be considered by the court, and denied the motion as moot.
COVID-19 delayed Caballero-Melgar's proceedings from March 2020 to September 14, 2020.[1] Caballero-Melgar then moved to continue his trial date from October 13, 2020, which the court granted, rescheduling trial for February 16, 2021. A general court order then cancelled all jury trials through February 26, 2021, so the district court rescheduled trial for April 27, 2021.
On April 9, 2021, Caballero-Melgar filed a pro se motion requesting that his counsel move to dismiss Counts 2 and 4 of the superseding indictment. The district court did not consider the motion, as it did not relate to Caballero-Melgar's representation. But two weeks later-nine days before trial-the court held a telephonic conference about the motion at the request of Caballero-Melgar's counsel.
Caballero-Melgar's counsel described how their relationship with him had grown "kind of contentious" over a few issues, mainly related to Caballero-Melgar's request to move to dismiss certain counts of the superseding indictment, which counsel believed would be a frivolous filing. DE 606, Tr., Page ID 3629-30. Other issues between Caballero-Melgar and his counsel were discussed, such as Caballero-Melgar's trial attire, possible assistance by a jailhouse lawyer with Caballero-Melgar's pro se filings, and his dissatisfaction with the government's plea offer. It was decided that defense counsel would move for a new attorney, a motion that they filed that day.
The court held an ex parte hearing on the filed motion on April 23, 2021. During the hearing, Caballero-Melgar stated that he decided to change counsel "because [he and his counsel] [were] not understanding each other," illustrated by his counse...
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