United States v. Franco–Santiago

• Decision Date: 31 May 2012
• Docket Number: No. 10–2247.,10–2247.
• Citation: 681 F.3d 1
• Parties: UNITED STATES, Appellee, v. José FRANCO–SANTIAGO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

681 F.3d 1

UNITED STATES, Appellee,

v.José FRANCO–SANTIAGO, Defendant, Appellant.

No. 10–2247.

United States Court of Appeals, First Circuit.

Heard March 5, 2012.

Decided May 31, 2012.

Irma R. Valldejuli, for appellant.

José A. Contreras, Assistant United States Attorney, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LYNCH, Chief Judge.

José Franco–Santiago appeals from his federal criminal conviction on April 16, 2010, for being a member of an ongoing conspiracy which engaged in five robberies of businesses in violation of the Hobbs Act from July 2002 through September 2002. He was a police officer with the Puerto Rico police force from 1991 until September 2007, shortly after he was indicted on August 22, 2007, on the conspiracy charge.

At his trial, the government put on evidence sufficient to prove that Franco–Santiago participated in one of the robberies. On August 7, 2002, he assisted in the robbery of a private security firm's payroll by loaning the robbers his personal firearm and by driving a getaway car. For his part in this robbery, he received $7,500.

Franco–Santiago makes several arguments on appeal, but there is one central argument: he contends that even if there was sufficient evidence to convict him of conspiring to commit the payroll robbery of August 7, 2002, there was not legally sufficient evidence to convict him of participating in the charged broader multiple-robbery conspiracy, much less one that included the next and final robbery of September 25, 2002. As such, he argues, his conviction for the August 7, 2002, robbery was barred by the five-year statute of limitations for non-capital federal crimes. See18 U.S.C. § 3282(a). In short, the government was two weeks too late in indicting him on August 22, 2007, for an August 7, 2002, robbery. We agree, reverse, and remand for entry of a judgment of acquittal.

I.

On August 22, 2007, a federal grand jury returned an indictment charging Franco–Santiago and seven co-defendants with one count of conspiring to rob businesses engaged in interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a).¹ The grand jury returned the second superseding indictment under which Franco–Santiago was tried on November 28, 2007. ² Both the original indictment and the second superseding indictment charged a conspiracy “[f]rom on or about the [sic] July 2002 up to on or about September 2002” and five overt acts: the robbery of a video store on July 2, 2002; the robbery of a supermarket on July 9, 2002; the robbery of a beauty salon sometime in July 2002; the robbery of a private security firm's payroll on August 7, 2002; and the robbery of a restaurant on September 25, 2002.

Five of Franco–Santiago's co-defendants pled guilty, one co-defendant's charge was dismissed with prejudice as time barred, and the charges of two others were dismissed without prejudice because they were fugitives. Franco–Santiago alone went to trial. His eight-day jury trial lasted from April 5, 2010, through April 15, 2010. On April 16, 2010, the jury returned a guilty verdict.

During his two-day sentencing hearing held in September 2010, the government conceded that there was no evidence presented at trial that Franco–Santiago knew about the three robberies committed in July 2002 and so he could not be held accountable for those robberies for purposes of calculating his guidelines sentencing range. However, on the first day of the hearing the government argued that Franco–Santiago's sentencing calculation should include the restaurant robbery of September 25, 2002. Franco–Santiago strenuously opposed this on the ground that there was no evidence presented at trial supporting an inference that he knew about or foresaw this robbery.

On the second day of the sentencing hearing, counsel for the government opened by telling the district court that he had “found some evidence that helps [the] defense and supports his argument that the defendant should not be held accountable for the September 25th robbery. Actually, to be bluntly honest, it appears that he should not be.” The court stated that it had reached the same conclusion.

The court then based its sentencing calculation solely on Franco–Santiago's involvement in the August 7 payroll robbery. On September 28, 2010, the district court sentenced Franco–Santiago to ninety-six months in prison and three years of supervised release and imposed a restitution order of $46,000, to be paid jointly and severally by the co-defendants who took part in the August 7 payroll robbery. The court entered judgment the same day, and Franco–Santiago timely appealed.

On appeal Franco–Santiago raises multiple arguments, of which one is dispositive: that the government presented insufficient evidence that he was part of a single overarching conspiracy to commit robberies from July 2002 through September 2002, and at most he could only have been convicted of conspiring to commit the single payroll robbery of August 7, 2002, for which the statute of limitations had expired when he was first indicted on August 22, 2007.³

We hold that while there was sufficient evidence to convict Franco–Santiago of conspiring to commit the August 7 payroll robbery, there was insufficient evidence to convict him of agreeing to participate in a broader conspiracy spanning July 2002 through September 2002. This has resulted in prejudice, not because of a variance, but because of the expiration of the statute of limitations. We find there is plain error, reverse his conviction, and remand for entry of a judgment of acquittal.

II.

Because Franco–Santiago questions the sufficiency of the evidence supporting his conviction of the charged conspiracy, we relate the facts in the light most favorable to the verdict. See United States v. De Jesús–Viera, 655 F.3d 52, 55 (1st Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1045, 181 L.Ed.2d 768 (2012).

The second superseding indictment under which Franco–Santiago was tried charged nine defendants, including Franco–Santiago, who alone went to trial. The government called eight witnesses during Franco–Santiago's trial, among them the police officer who investigated the August 7 robbery, a crime scene technician, a fingerprint expert, a firearms expert, and victims of three of the robberies charged as overt acts, including the victim of the August 7 robbery. The government's most important witness, and the only one who could have tied Franco–Santiago to the other robberies, was Rubén Hernández, an unindicted co-conspirator and government cooperator. The following account comes mostly from Hernández's testimony.

When Hernández came to Puerto Rico from the Dominican Republic in 2000 he held legitimate jobs at first, but he soon met a man known as Chicky, ⁴ and the two went on to commit multiple robberies. Through Chicky, Hernández met Luis,⁵ and Luis, in turn, introduced Hernández to appellant Franco–Santiago approximately three months before the payroll robbery of August 7, 2002, in which all three participated. The exact date of the meeting is unclear, but it was before the plot to do the August 7 payroll robbery was hatched and before the broader charged conspiracy began in July 2002. The three men met at a residence in Río Piedras, and Luis introduced Franco–Santiago to Hernández as “the police officer” or “the cop.” The prosecution solicited no testimony from Hernández regarding what happened at this meeting or what, if anything, the men discussed.

On July 2, 2002, Chicky and Hernández, along with two other persons named Alex ⁶ and Raiza,⁷ robbed $6,000 from a video store in Santurce. On July 9, 2002, Hernández robbed a supermarket called Centro Ahorros with Chicky, Alex, and a man known as Arlin.⁸ And at some point in July 2002 Hernández also robbed a beauty salon with Chicky, a man known as Wellington,⁹ and Frank Guerra.¹⁰ There was no evidence that Franco–Santiago was involved in, knew about, or assisted any of these three July 2002 robberies.

At some unknown point after Hernández, Luis, and Franco–Santiago met in Río Piedras, Luis approached Hernández about potentially robbing a businessman: Ernesto Carrasquillo Matos, the owner of a private security firm called CM Express Service. Luis, in turn, had been given the information about the robbery by a man known simply as “Frank,” who was not charged in the indictment and not otherwise identified. Frank had private information about the victim, and it was Frank who managed and directed the robbery. There is no evidence that Frank was involved in any of the other four robberies charged as overt acts in the indictment. The plan was to rob Carrasquillo of the cash he withdrew from a bank to pay his company's payroll, which the robbers expected to amount to somewhere between $40,000 and $80,000.

Hernández and Luis had several conversations about how to commit the robbery. Among other things, they discussed needing cars and more guns to pull it off. To solve this firearm shortage, Luis suggested they turn to “a friend,” the policeman to whom he had introduced Hernández before: appellant Franco–Santiago. Luis told Hernández that Franco–Santiago would be willing to lend a weapon to carry out the robbery. They also planned to use Franco–Santiago's van as a getaway car.

By the time of the robbery, a group of six had been assembled: Hernández, Luis, Chicky, a man known as El Teniente ¹¹ (“Lieutenant”), a man identified only as Pocho, and appellant Franco–Santiago. It is possible that the planner, Frank, was present for the robbery as well. There was no evidence that Hernández, Luis, or Chicky had ever worked with Franco–Santiago, El Teniente, or Pocho before this event.

On the morning of August 7, 2002, Franco–Santiago drove his van to a rendezvous point:...