United States v. Perez

• Decision Date: 26 October 2011
• Docket Number: No. 09–13409.,09–13409.
• Citation: 661 F.3d 568,23 Fla. L. Weekly Fed. C 482
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rene Gonzalez PEREZ, a.k.a. Pipo, Luis Fernandez, a.k.a. Pacha, Roberto Davila, a.k.a. Chino, Amilka Del Monte, a.k.a. Milka, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 482

661 F.3d 568

UNITED STATES of America, Plaintiff–Appellee,

v.Rene Gonzalez PEREZ, a.k.a. Pipo, Luis Fernandez, a.k.a. Pacha, Roberto Davila, a.k.a. Chino, Amilka Del Monte, a.k.a. Milka, Defendants–Appellants.

No. 09–13409.

United States Court of Appeals, Eleventh Circuit.

Oct. 26, 2011.

Richard C. Klugh, Jr. (Court–Appointed), Scott William Sakin (Court–Appointed), Orlando do Campo (Court–Appointed), do Campo and Thornton, Miami, FL, Manuel L. Casabielle (Court–Appointed), Coral Gables, FL, for Defendants–Appellants.

Stephen Schlessinger; Anne R. Schultz and Harriett R. Galvin, Asst. U.S. Attys., Kathleen M. Salyer, Miami, FL, for Plaintiff–Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

This case involves convictions for two Hobbs Act¹ conspiracies and related substantive offenses. The first conspiracy, Count 1 of the superceding indictment, charged two of the appellants, Rene Gonzalez Perez and Amilka Del Monte, with conspiring between August 2 and 23, 2007, to rob a check-cashing store in Ft. Pierce, Florida.² The second conspiracy, Count 5, grew out of the first conspiracy and charged all four appellants—Perez, Del Monte, Roberto Davila, and Luis Fernandez—and Reinier Pereier³ with conspiring between August 8 and August 23, 2007, to rob a fictional cocaine stash house in Miami, Florida. The related offenses were charged in Counts 6, 7, and 8. Count 6 alleged that all appellants attempted to rob the cocaine stash house on August 23, 2007⁴; Count 7 alleged that they carried firearms in connection with such attempt.⁵ Count 8 charged Del Monte with being a felon in possession of a firearm.⁶

In this appeal, all appellants challenge the sufficiency of the evidence to support their convictions. Alternatively, they argue that we should grant a new trial because of several prejudicial errors the district court purportedly made both pretrial and at trial. Perez and Del Monte also challenge their sentences.

We first address appellants' sufficiency of the evidence arguments. With the exception of Del Monte's challenge to his convictions on Counts 7 and 8, these arguments are frivolous and require no discussion. We nonetheless relate the facts pertaining to Counts 1, 5, and 6 because they bear on our disposition of Del Monte's challenges to Counts 7 and 8 and to Perez's sentence appeal.

I.

The appellants did not move for a judgment of acquittal prior to the district court's submission of the case to the jury or after the jury returned its verdicts. See Fed.R.Crim.P. 29.⁷ As a result, we will uphold appellants' convictions “unless [ ] do[ing] so would result in a manifest miscarriage of justice.” United States v. Thompson, 610 F.3d 1335, 1338 (11th Cir.2010) (quoting United States v. Pate, 543 F.2d 1148, 1150 (5th Cir.1976)). “This standard requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002) (citing United States v. Hamblin, 911 F.2d 551, 556–57 (11th Cir.1990)). To make this determination, “we consider all of the evidence presented at trial,” Thompson, 610 F.3d at 1338, drawing all reasonable inferences and credibility choices in favor of the jury's verdict. United States v. Tarkoff, 242 F.3d 991, 993 (11th Cir.2001).

We now relate the salient facts in this case under the standard described above. In late July 2007, a confidential informant (the “CI”) for a joint state/federal task force discussed potential robbery targets with Onel Salgado, ⁸ including a check-cashing store in Ft. Pierce and a fictional cocaine stash house in Miami. Salgado expressed interest in both ideas, but their focus quickly centered on the check-cashing store. The CI described its operations and stated that the owner frequently moved large sums of money to and from the store.

Following this conversation, Salgado solicited appellant Perez for assistance in robbing the check-cashing store. On August 2, 2007, Salgado introduced Perez to the CI, and Perez stated his desire to take part in the Ft. Pierce heist. Citing his criminal expertise, Perez then began to direct the robbery's planning. Specifically, Perez insisted that he work with a particular partner, later revealed to be appellant Del Monte. Due to the CI's task force handlers' concerns about potential injuries that could result from an attempted robbery of the store, the CI also encouraged Salgado to consider robbing the fictional cocaine stash house. Salgado wished to conduct both robberies, but he put the stash house robbery on hold when a potential conspirator refused to take part. With the cooperation of Perez and Del Monte, however, planning for the robbery of the check-cashing store continued.

On August 16, 2007, as the planned date for the check-cashing robbery neared, the task force received judicial authorization to intercept telephonic communications of Salgado and Perez. In a series of intercepted calls, Perez, Del Monte, Salgado, and the CI finalized their plans for the heist. The CI would park his car near the check-cashing store. As the owner left the store with a large sum of money, the CI would point him out to Perez and Del Monte; Salgado, driving the getaway car, would be parked nearby. Perez and Del Monte would then assault the owner, seize the cash, and flee the scene in Salgado's car.

The following morning, the CI, Perez, Del Monte, and Salgado met in a Miami shopping mall parking lot to put their plan into action. Perez and Del Monte then purchased pepper spray from a nearby gun shop, which they intended to douse the store owner with during the robbery. Afterwards, Perez, Del Monte, Salgado, and the CI drove towards Ft. Pierce in two cars to complete the robbery. The CI's task force handlers, concerned about injuries that could occur during the robbery, instructed the CI to abandon the scheme. Therefore, prior to their arrival at the store, the CI told his coconspirators that a contact had informed him that a large number of police had arrived at the store to break up a fight. Though Perez and Del Monte argued that the robbery should still go forward in some form, the parties ultimately decided to return to Miami.

On the car ride back from the aborted check-cashing store robbery, Salgado told Perez and Del Monte about the potential cocaine stash house robbery. The hold-up would be made possible by the cooperation of a disloyal drug courier “Juan,” who was actually an undercover Miami–Dade detective. “Juan” would receive the location of the stash house after collecting his bimonthly delivery of twenty to thirty kilograms of cocaine from the Tamiami Airport. He would then convey this information to the CI, allowing Salgado and his coconspirators to steal the drugs from armed guards brought to the stash house from Mexico. Perez and Del Monte embraced the proposal, adding that although more than three intruders would be needed, they “had the people for that.”

Preparations for the robbery moved quickly. On August 21, 2007, the CI, Salgado, and “Juan” met to discuss their progress. Salgado reported that Perez and Del Monte wanted to overpower and immobilize the stash house guards shortly after they learned the stash house's location. They would then relieve “Juan” of the cocaine upon his arrival. “Juan” agreed with the plan and advised Salgado that the next shipment would arrive two days later, on August 23, 2007. Immediately following this meeting, Salgado called Perez to inform him of the shipment's arrival. Perez stated that he would “call the guys” and subsequently contacted appellants Fernandez and Davila. The next evening, Salgado called Perez to confirm that the cocaine would arrive the following afternoon. Perez then called an unidentified male to locate firearms for “work” the next day.

In the early afternoon of August 23rd, the day of the planned robbery, Salgado, Perez, Fernandez, Del Monte, and Pereier met at Perez's apartment to discuss the heist; though Davila was not present, he and Fernandez exchanged three phone calls during this time. Perez stressed the importance of completing the robbery that night, as the next cocaine shipment would not arrive for another twenty days. While the robbery crew all expressed their willingness to go forward, they also wished to meet “Juan” beforehand. Therefore, Salgado, Del Monte, and Fernandez left Perez's apartment, picked up the CI at a nearby restaurant, and returned.

At Perez's apartment, the CI apologized for “Juan's” absence and recounted the robbery's details. In particular, the conspirators discussed the need to be armed given the near certainty that the show of deadly force would be necessary to succeed. For example, Fernandez described how the Mexican guards would “kill you” to protect the drugs. Perez asked Fernandez if Davila would supply the necessary weapons. Fernandez replied that Davila had “four weapons and a shotgun,” including a machine gun, and stated that they would need five hoods and plastic handcuffs. Perez noted that the machine gun would intimidate the guards. Because the transportation of guns would increase their risk of detection, they decided that the firearms would be transported in a separate vehicle. If police stopped that vehicle, the other car would create a distraction to allow it to escape.

After the CI stated that “Juan” would contact him within an hour, Fernandez and Davila exchanged two telephone calls; Davila arrived shortly thereafter. When the CI announced that he received “Juan's” call, Perez and his nephew placed a long firearm and a handgun into a black bag. Davila, Fernandez, and the CI carried this bag from the apartment and placed it in the rear of the CI's car. Davila took additional firearms from his car and put them in the CI's vehicle.

At this point, Salgado, Perez,...