USA v. Gary Baptise

Filing

Opinion issued by court as to Appellant Gary Baptiste. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed. 11-11783X.

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Date Filed: 08/17/2012

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 11-11783; 11-11846
________________________
D.C. Docket No. 0:10-cr-60077-FAM-1

UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus

KERRY RAPHAEL,
GARY BAPTISTE,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellants.

________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 17, 2012)

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Before WILSON, PRYOR and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
Gary Baptiste and Kerry Raphael appeal their convictions and sentences
following a jury trial. After thorough review of the record and briefs, and with the
benefit of oral argument, we affirm the District Court.
I. BACKGROUND1
This case arises out of a reverse sting operation conducted by Detective
Sanchez of the Broward County Sheriff’s Office in Florida. Detective Sanchez
posed undercover as a disgruntled operative of a Mexican drug cartel who wanted
to orchestrate an armed robbery of his cartel’s stash house.
Mr. Baptiste became involved in this operation when a confidential
informant, Willie Perry, arranged a meeting between himself, Mr. Baptiste,
Detective Sanchez, and another undercover agent on January 27, 2010. During the
meeting, Detective Sanchez explained to Mr. Baptiste that a large quantity of
cocaine would be delivered to an as yet undisclosed stash house. Mr. Baptiste
agreed to coordinate and participate in an armed robbery to steal the cocaine. He
named two individuals who would help him: “Shakay” and “Gargoyle.” Shakay

1

We recite the facts in the light most favorable to the government. United States v.
Augustin, 661 F.3d 1105, 1111 (11th Cir. 2011).
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was later identified as co-defendant Esequiel Perez, and Gargoyle was later
identified as Mr. Kerry Raphael. At the end of the meeting, Mr. Baptiste indicated
that he would talk to his associates about the particulars of the robbery.
On February 1, 2010, Detective Sanchez and Mr. Baptiste met a second time
at another restaurant. This time, Mr. Baptiste came with co-defendant Mr. Perez.
The three men discussed the details of the robbery. Mr. Perez and Mr. Baptiste
discussed how they could process the stolen cocaine into crack. They also
expressed concern that they might need more associates to successfully execute
the robbery.
On February 18, 2010, Mr. Baptiste and Detective Sanchez met for a third
time, this time at a pool hall. They discussed the possibility that Mr. Baptiste’s
team would encounter guards at the stash house. Mr. Baptiste, believing that
Detective Sanchez did not want the robbery to be traced back to him, attempted to
assuage Sanchez’s concerns by saying: “the best way to do this . . . we go in but
we have to take [the guards] out. There’s no story.”
On the evening of February 22, 2010, Detective Sanchez called Mr. Baptiste
to inform him that the shipment of cocaine was going to be in town the following
day. On February 23, Detective Sanchez met Mr. Baptiste and Mr. Perez at a gas
station in preparation for the robbery. Mr. Baptiste and Mr. Perez then rode in a
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Honda Accord and followed Detective Sanchez to a warehouse, which was the
meeting place for the robbery.
While the three men were en route to the warehouse, police officers saw a
gray Nissan Altima and a beige Ford Taurus leave a nearby CVS parking lot and
head toward the warehouse. Mr. Raphael was in the back of the Altima with two
other co-defendants. Mr. Baptiste entered the warehouse with Detective Sanchez.
The Taurus was driven up to the warehouse. The Altima, with Mr. Raphael in the
back seat, remained outside the warehouse area, while one of the co-defendants
got out of the Altima wearing a ski mask and entered the warehouse.
At this point, SWAT team members executed their raid and arrested all the
co-defendants, including Mr. Raphael and Mr. Baptiste. Mr. Raphael was arrested
next to the Altima and searched. He was wearing all black, carrying a black ski
mask, a loaded 9mm handgun magazine, and a holster. The magazine was
compatible with a 9mm pistol found in the Taurus. In the Honda Accord driven by
Mr. Baptiste and Mr. Perez, police found bullet proof vests, a loaded Ruger assault
rifle, and black T-shirts.
After the arrest, police executed a search warrant on the defendants’ cell
phones and found a record showing phone calls between Mr. Baptiste’s phone
number and Mr. Raphael’s phone number following each of Baptiste’s meetings
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with Detective Sanchez. The phone records did not reflect the content of those
conversations.
The search warrant also revealed text messages between Mr. Raphael and
Mr. Baptiste. On the day of the robbery, Mr. Raphael sent Mr. Baptiste a text
message at 9:44 a.m. telling him to “get tie strap.” He sent another text one
minute later saying, “troll use as handcuffs, it’s white n plastic.” Mr. Raphael and
Mr. Baptiste remained in periodic contact for the rest of the day leading up to the
would-be robbery and raid.
II. PROCEDURAL HISTORY
In March 2010, a grand jury indicted Mr. Baptiste, Mr. Raphael and five
other co-defendants. In November 2010, a grand jury returned a Superseding
Indictment, charging the defendants as follows: Count One—Hobbs Act
conspiracy, in violation of 18 U.S.C. § 1951(a); Count Two—conspiracy to
possess with intent to distribute five kilograms of cocaine, in violation of 21
U.S.C. § 846; Count Three—attempt to possess with intent to distribute five
kilograms of cocaine, in violation of § 846; Count Four—conspiracy to use and
carry a firearm and ammunition during and in relation to a crime of violence, and
during and in relation to a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(o); and Count Five—carrying a firearm and ammunition during a crime of
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violence and in relation to a drug-trafficking crime, in violation of § 924(c)(1).
Mr. Baptiste alone was charged with Count Six, possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1).
The trial against the seven co-defendants lasted nine days. Mr. Baptiste
mounted an entrapment defense alleging coercion on the part of confidential
informant Willie Perry, and he testified at trial. Mr. Raphael did not put on an
affirmative defense. At the close of the evidence, the jury deliberated for five
days. On February 1, 2011, the jury returned a partial verdict. As to Mr. Raphael,
the jury acquitted him of Counts Two and Three (conspiracy to possess cocaine
charges), but did not reach a verdict on Counts One, Four, and Five (Hobbs Act
and firearms possession charges). The jury convicted Mr. Baptiste on Count Six
(possession of a firearm by a convicted felon), but reached no verdict on Counts
One to Five. The District Court gave a modified Allen charge and sent the jury
back for deliberations. The following day, the jury convicted Mr. Baptiste on
Counts One, Four, and Five—the Hobbs Act conspiracy and firearms possession
charges.2 The jury convicted Mr. Raphael on Count One only—the Hobbs Act

2

The jury remained undecided on all remaining counts against Mr. Baptiste. The
government later dismissed those charges.
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conspiracy.3
At sentencing, the District Court imposed a 660-month prison sentence on
Mr. Baptiste, and a 120-month sentence on Mr. Raphael. The two appealed,
raising a number of issues as to their convictions and sentences. We address Mr.
Baptiste’s arguments first, and then turn to Mr. Raphael’s claims.
III. DISCUSSION
A. Mr. Baptiste
Mr. Baptiste challenges his convictions and sentence on a number of
grounds. We discuss Mr. Baptiste’s strongest arguments, and describe the relevant
facts as they apply to each issue.
1. Limitation on Cross-Examination of Detective Sanchez
During cross-examination of Detective Sanchez, Mr. Baptiste questioned
Sanchez about his interactions with confidential informant Mr. Perry. Detective
Sanchez testified that he never discussed the issue of entrapment with Mr. Perry,
and that he did not know whether any other detective had discussed entrapment
with Perry. Detective Sanchez conceded that protocol required such a discussion.
He further admitted that Mr. Perry received a benefit for cooperating as a

3

As with Mr. Baptiste, the jury could not decide the remaining counts against Mr.
Raphael. The government later dismissed those outstanding charges.
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confidential informant—specifically, Perry received probation for a charge that
would otherwise have carried a fifteen-year minimum sentence. Mr. Baptiste also
asked Detective Sanchez whether he had checked Mr. Perry’s “rap sheet,” and
whether he knew that Perry had been charged with attempted murder. Detective
Sanchez indicated that he was aware of the attempted murder charge. Finally, Mr.
Baptiste asked whether Detective Sanchez was aware that Mr. Perry had multiple
arrests for dealing in cocaine, and attempted to introduce evidence concerning
those prior arrests.
At this point, the District Court stopped the questioning of Detective
Sanchez. The Court expressed concern that Mr. Baptiste was asking Detective
Sanchez questions about a non-witness’s criminal history, and that he could not
“impeach or attack the credibility of a person who is not even in the courtroom and
who may not even show up in the courtroom.” Mr. Baptiste replied he was not
impeaching Mr. Perry through his line of questioning. Rather, he intended to
impeach Detective Sanchez for failure to do a thorough job of investigating Mr.
Perry’s background. He explained that Detective Sanchez’s professional
incompetence went to his credibility as a witness. Mr. Baptiste also explained that
he wanted to ask Detective Sanchez additional questions about the probation that
Mr. Perry received to show Sanchez’s bias. The Court, however, did not allow
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this line of questioning.
Mr. Baptiste argues that the District Court erred by preventing him from
asking Detective Sanchez about Mr. Perry’s criminal history and prior conduct.
He asserts that none of the Federal Rules of Evidence flatly prohibits the
introduction of evidence relating to a non-witness. He also argues that this error
denied him his Due Process and Sixth Amendment rights to present a complete
defense. See Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731
(2006).
We review Mr. Baptiste’s claim that the District Court improperly limited
the scope of his cross-examination for abuse of discretion. United States v.
Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009). However, this discretion is
limited by a criminal defendant’s constitutional right to present a defense. See
United States v. Frazier, 387 F.3d 1244, 1302 (11th Cir. 2004). While we
typically review claims of constitutional error de novo, where a defendant fails to
raise a constitutional claim in the district court, we review that claim on appeal for
plain error. United States v. Douglas, 489 F.3d 1117, 1125 (11th Cir. 2007) (per
curiam). We will reverse on plain error only when 1) there was an error; 2) the
error was obvious; 3) the error affects the defendant’s substantial rights; and 4) the
error seriously affects the fairness, integrity or reputation of the judicial
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proceeding. Id.
After reviewing the trial transcripts, we conclude that the District Court
erred in limiting the cross-examination of Detective Sanchez with regard to the
evidence concerning Mr. Perry’s criminal history. In the same vein, we have held,
for example, that the Federal Rules of Evidence permit a defendant to introduce
evidence concerning the criminal history of a non-testifying confidential informant
in order to substantiate the defense’s theory that the informant had planted drugs
on him at the time of his arrest. See United States v. Stephens, 365 F.3d 967,
974–75 (11th Cir. 2004). Thus, there is no blanket prohibition on admitting
evidence concerning a non-testifying confidential informant’s criminal history, if
that evidence is used to substantiate a defense. Cf. United States v. Williams, 954
F.2d 668, 672 (11th Cir. 1992) (restricting admission of evidence where it is used
“to impeach a witness who does not testify.” (emphasis added) ). We conclude it
was error in this circumstance for the District Court to prohibit Mr. Baptiste’s line
of questioning as to Mr. Perry’s criminal history.
We have also concluded, however, that error was harmless. See United
States v. Cameron, 907 F.2d 1051, 1059–60 (11th Cir. 1990). Mr. Baptiste argues
that he should have been permitted to elicit additional facts regarding Mr. Perry to
support his entrapment defense, including the fact that Perry was charged with
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attempted murder, and that Detective Sanchez failed to follow protocol in
screening Perry. Yet, the record demonstrates that Mr. Baptiste elicited testimony
from Detective Sanchez about those very facts, including Mr. Perry’s attempted
murder charge, before the District Court cut off his questioning. Because that
evidence was before the jury, we cannot say that the District Court’s error
prejudiced Mr. Baptiste.
As for Mr. Baptiste’s claim that the District Court’s limitation denied him
an opportunity to present a complete defense under the Fifth Amendment, we have
held that cross-examination of a witness may be required to elicit the substantive
evidence necessary to present a complete defense. See United States v. Cohen,
888 F.2d 770, 776–77 (11th Cir. 1989). However, Mr. Baptiste never argued to
the District Court that the limitations it placed on the cross-examination of
Detective Sanchez deprived him of his constitutional right to present a defense.
Therefore, the District Court never had an opportunity to consider Mr. Baptiste’s
constitutional claim, and so we review this claim for plain error only. See
Douglas, 489 F.3d at 1125. For the same reasons that the District Court’s
evidentiary ruling constituted harmless error, it did not affect Mr. Baptiste’s
substantial rights, and thus does not rise to the level of plain error.
Mr. Baptiste also argues that the District Court’s limitation of his
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questioning of Detective Sanchez violated his rights under the Confrontation
Clause of the Sixth Amendment. We ordinarily review a district court’s decision
to limit the scope of cross-examination for abuse of discretion; however, this
discretion remains “subject to the requirements of the Sixth Amendment,” United
States v. Diaz, 26 F.3d 1533, 1539 (11th Cir. 1994), which guarantees a criminal
defendant the right to impeach adverse witnesses. United States v. Barrington,
648 F.3d 1178, 1188 (11th Cir. 2011). But because Mr. Baptiste did not raise a
Sixth Amendment argument before the District Court, we also review this
argument only for plain error. Douglas, 489 F.3d at 1125.
The Sixth Amendment’s Confrontation Clause is satisfied so long as crossexamination exposes the jury to facts “sufficient to evaluate the credibility of the
witness.” Barrington, 648 F.3d at 1188 (quotation marks omitted). Specifically,
courts are to inquire “whether a reasonable jury would have received a
significantly different impression of the witness’ credibility had counsel pursued
the proposed line of cross-examination.” Id. (quotation marks omitted).
Mr. Baptiste argues that the District Court denied him the right to confront
Detective Sanchez by limiting his questions aimed at exposing the detective’s bias.
However, we find no error, let alone plain error. The District Court permitted
adequate cross-examination of Detective Sanchez, which revealed that he failed to
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follow protocol and discuss entrapment with Mr. Perry, that he assisted Perry in
getting a reduced sentence of probation, and that Perry was implicated in an
attempted murder charge. Thus, the jury had ample evidence to evaluate Detective
Sanchez’s credibility. While Mr. Baptiste was denied the opportunity to delve into
the specifics of Mr. Perry’s criminal history, we cannot say that “a reasonable jury
would have received a significantly different impression” of Detective Sanchez
had they heard that evidence.4 See id. (holding that details of pending criminal
charge would not have created a significantly different impression of witness
where witness had already admitted to charge); Diaz, 26 F.3d at 1540.
2. Mr. Perry’s Invocation of the Fifth Amendment
Mr. Baptiste’s attempt to present his entrapment defense was complicated

4

Mr. Baptiste also argues that the District Court abused its discretion by disallowing
another line of questioning. On direct, Detective Sanchez testified that he selected ten kilograms
of cocaine because “the story . . . had to be believable.” During cross-examination, Mr. Baptiste
attempted to impeach Detective Sanchez’s explanation by asking whether he had selected tenkilograms in order to increase his sentence. The District Court barred the line of questioning,
ruling that sentencing was not an issue for the jury to consider. Mr. Baptiste correctly argues that
even if the sentence that he was facing was not generally admissible as evidence at trial, the line
of questioning could have impeached Sanchez’s proffered reason for selecting ten kilograms of
cocaine. See Ellis v. Capps, 500 F.2d 225, 227 (5th Cir. 1974) (“Facts wholly immaterial, or
prejudicial to one of the parties on the main issue, may be material as affecting the credibility of a
witness.”); see also Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981)
(holding as binding decisions rendered by the Former Fifth Circuit prior to the close of business
on September 30, 1981). Nonetheless, even if this ruling rose to the level of error, we conclude
that the proffered evidence would not have created a significantly different impression of
Detective Sanchez’s credibility in light of the other impeachment evidence elicited during his
cross-examination.
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by the fact that, at the time of trial, Mr. Perry was in state custody on an attempted
murder charge. During trial, Mr. Baptiste requested that the District Court issue a
writ of habeas corpus ad testificandum. He explained to the Court that, in order to
buttress his entrapment defense, he intended to prove that Mr. Perry had lied to the
police about the number of times he called Mr. Baptiste. Counsel for Mr. Perry
had previously informed Mr. Baptiste’s counsel that Perry would assert his Fifth
Amendment privilege to remain silent if asked about the number of times he
contacted Baptiste.
The District Court ruled that Mr. Baptiste could not “drag in a witness
without knowing what he’s going to say when his lawyer has [said] that he’s going
to invoke the Fifth.” The Court explained that Mr. Baptiste had to first
demonstrate the relevance of Mr. Perry’s testimony to his defense before it would
issue a writ. However, the Court acknowledged that there might be a due process
concern if he did not allow Mr. Baptiste to subpoena Mr. Perry; therefore, the
Court agreed to sign and docket a writ of habeas corpus ad testificandum ordering
Perry to testify.
To resolve the issue, the Court held a hearing outside the presence of the
jury and by telephone with Mr. Perry’s counsel, in which Mr. Baptiste read off the
questions he wanted to ask Perry under oath. Mr. Perry’s counsel responded that
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he would advise his client to refuse to answer any of the questions by asserting his
rights under the Fifth Amendment. At the end of the hearing, the District Court
ruled that the answers to the questions were protected by the Fifth Amendment.
The Court stated that Mr. Perry was properly relying on his lawyer’s advice, and
that the Court would not force Perry “over here just to do something that is clear
he would do here.” The Court then agreed to cancel the writ of habeas corpus ad
testificandum at the request of the government.
Mr. Baptiste challenges the District Court’s refusal to issue the writ based
on Mr. Perry’s assertion of his Fifth Amendment privilege. We review for abuse
of discretion a district court’s decision to honor a potential witness’s invocation of
the Fifth Amendment right against self-incrimination. United States v. Perez, 661
F.3d 568, 580 (11th Cir. 2011). A witness must have “reasonable cause” to invoke
the protection—a standard that does “not require a high showing.” Id. With that
said, “the privilege does not protect against ‘remote and speculative possibilities’”
of incrimination. United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997).
Mr. Baptiste argues that the District Court failed to make a proper inquiry
into the legitimacy and scope of Mr. Perry’s asserted Fifth Amendment privilege.
See United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). Specifically, he
contends that the Court made only a “perfunctory inquiry” by referring questions
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to Mr. Perry’s attorney instead of to Perry himself. However, we have upheld a
district court’s decision to honor invocations of the Fifth Amendment
privilege—even when the court did not direct its questions to the witness—where
the court otherwise had “sufficient, uncontested evidence before it on which to
find that [the witness] could plausibly fear that his answers . . . could lead to a
charge of perjury.” Perez, 661 F.3d at 580. And at least one other circuit has held
that a district court does not abuse its discretion by refusing to force a witness to
take the stand outside the presence of the jury when the proposed line of
questioning is intended to substantiate the defense’s theory that the witness was
the true perpetrator of the crime. See United States v. Mares, 402 F.3d 511,
514–15 (5th Cir. 2005).
In reviewing the questions read to Mr. Perry’s counsel during the hearing,5
5

We list the questions below. While the answers to the first two questions would likely
not raise Fifth Amendment concerns under the facts of this case, the rest of the questions may
have exposed Mr. Perry to prosecution for perjury. See United States v. Fortin, 685 F.2d 1297,
1298 (11th Cir. 1982).
1.
2.
3.
4.
5.
6.
7.
8.

Was Willie Perry the confidential informant in the case against Gary Baptiste?
Mr. Perry, did you ever speak to Gary Baptiste on the phone regarding this case?
If so, how many times? If so, how many of those calls are recorded?
Did you ever meet with Gary Baptiste regarding this case? If so, how many times?
Where?
Do you know anything about the weapons that were provided in this matter?
Did you provide any weapons to Mr. Baptiste or Mr. Perez or anyone else in this
case?
Did you provide the masks in this case?
Did you provide the gloves in this case?
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we conclude that the District Court did not abuse its discretion in refusing to force
Perry to take the stand based on the Fifth Amendment. Indeed, Mr. Baptiste’s
stated reason for calling Mr. Perry to the stand was to demonstrate that Perry lied
to the police. This being the case, the District Court did not err in concluding that
Mr. Perry had reasonable cause to fear self-incrimination. See Perez, 661 F.3d at
580; Mares, 402 F.3d at 514–15.
3. Missing Witness Instruction
After closing argument, Mr. Baptiste requested that the District Court give
a missing witness jury instruction regarding Mr. Perry. The Court expressed
concern that the government had not granted Mr. Perry immunity, which would
have freed him to testify. It nevertheless rejected the proposed instruction,
because Mr. Perry was absent as a result of his claimed Fifth Amendment privilege
as opposed to the government’s reluctance to call him as a witness.
Mr. Baptiste argues that the District Court erred by refusing to give the jury
a missing witness instruction as to confidential informant Perry. A district court
retains discretion to give a missing witness instruction. United States v. Link, 921
F.2d 1523, 1529 (11th Cir. 1991). Under the missing witness instruction rule, “[i]f

9.

Did you provide the bullet proof vests in this case?
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it is peculiarly within the power of either the prosecution or the defense to produce
a witness who could give material testimony on an issue in the case,” then failure
to call that witness permits an inference that the testimony would have been
unfavorable to the party who refused to call the witness. Id.; see also United
States v. Nahoom, 791 F.2d 841, 846 (11th Cir. 1986). However, a party who is
unavailable by virtue of claiming the Fifth Amendment or another privilege does
not support a missing witness instruction. See United States v. Chapman, 435
F.2d 1245, 1247–48 (5th Cir. 1970); McClanahan v. United States, 230 F.2d 919,
926 (5th Cir. 1956) (“Ordinarily no inferences are permitted as a result of the
failure to call to the witness stand one whose testimony would be privileged.”).
This Court has not yet addressed the issue of whether the government’s
refusal to grant immunity to a witness may serve as a basis for a missing witness
instruction. But every circuit to have considered this question has held that the
government’s mere ability to grant immunity, without more, “does not make a
witness who invokes the Fifth Amendment right not to testify peculiarly available
to the government” within the meaning of the missing instruction witness rule.
United States v. Rios, 636 F.3d 168, 171 (5th Cir. 2011) ; accord United States v.
Myerson, 18 F.3d 153, 158–60 (2d Cir. 1994); United States v. St. Michael’s
Credit Union, 880 F.2d 579, 597–98 (1st Cir. 1989); United States v. Brutzman,
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731 F.2d 1449, 1453–54 (9th Cir. 1984); United States v. Flomenhoft, 714 F.2d
708, 713–14 (7th Cir. 1983); United States v. Simmons, 663 F.2d 107, 108 (D.C.
Cir. 1979).
Mr. Baptiste acknowledges that failure to grant immunity to a witness who
claims the Fifth Amendment privilege ordinarily does not support a missing
witness instruction, but suggests that this is not an ordinary case. Specifically, he
notes that the District Court indicated that it would have “signed [an] immunity
order in a minute” if the government had requested one, such that the government
could have easily granted Mr. Perry immunity for any conduct relating to Mr.
Baptiste’s case. Further, he argues that the government had no legitimate interest
in refusing to grant Mr. Perry immunity. The problem with Mr. Baptiste’s
argument is that it squarely contradicts the general rule that the government’s mere
ability to grant immunity to a witness who claims the Fifth Amendment privilege
does not make that witness peculiarly available to the government. See Rios, 636
F.3d at 171. That the government could have easily granted immunity and had no
legitimate reason for refusing to do so does not affect our application of this
general rule. Therefore, the District Court did not err in refusing to give a missing
witness instruction.
We are aware that some circuits have alluded to an exception to the general
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rule for a substantial showing of abuse of prosecutorial discretion, and have also
left open the possibility of an exception where circumstances suggest that the
witness’s testimony would have been exculpatory. See Rios, 636 F.3d at 172;
Myerson, 18 F.3d at 159; St. Michael’s Credit Union, 880 F.2d at 598 n.7, 599
n.8; Flomenhoft, 714 F.2d at 713–14. However, Mr. Baptiste did not argue in the
District Court, and does not argue now, that either of these exceptions should
apply here. Therefore, this is not a proper case to consider whether the
government’s refusal to grant its confidential informant immunity, where the
defendant otherwise presented sufficient evidence to get an entrapment defense
instruction, would have satisfied one of these exceptions.
4. Constructive Amendment of Superseding Indictment
Mr. Baptiste argues that the District Court’s jury instructions as to Count
One constructively amended his Superseding Indictment. Count One of the
Superseding Indictment charged Mr. Baptiste with conspiring to “obstruct, delay,
and affect interstate commerce and the movement of articles and commodities in
commerce by means of robbery.” In its jury instructions the Court permitted
conviction if the jury found that Mr. Baptiste had conspired to “obtain or take the
property of another, in this case cocaine,” and “as a result of the defendant’s
actions, interstate commerce or an item moving in interstate commerce would have
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been delayed, obstructed or affected in any way or degree.”
We review de novo whether jury instructions constructively amend the
charges alleged in an indictment. See United States v. Sanders, 668 F.3d 1298,
1309 n.9 (11th Cir. 2012). A constructive amendment is per se reversible error.
United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004); United States v.
Carroll, 582 F.2d 942, 944–45 (5th Cir. 1978).
We have held that a constructive amendment occurs when “the jury
instructions so modify the elements of the offense charged that the defendant may
have been convicted on a ground not alleged by the grand jury’s indictment.”
United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988) (quotation marks and
alteration omitted); see also United States v. Keller, 916 F.2d 628, 634 (11th Cir.
1990) (“[A constructive] amendment occurs when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.”).
Mr. Baptiste relies heavily on the Supreme Court case, Stirone v. United
States, 361 U.S. 212, 80 S. Ct. 270 (1960), in which the defendant had been
indicted for violating the Hobbs Act by causing “supplies and materials (sand) to
move in interstate commerce” through extortion. Id. at 213–14, 80 S. Ct. at 271.
The district court in Stirone instructed the jury that it could find the defendant
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guilty based either on his dealing in sand or in steel—an article of commerce not
originally charged in the indictment. Id. at 214, 80 S. Ct. at 271. The Supreme
Court held that the jury instruction violated the Fifth Amendment because it
permitted conviction on a ground not charged in the indictment. Id. at 219, 80
S. Ct. at 274. Mr. Baptiste argues that the Superseding Indictment here charged
defendants with conspiracy to obstruct or delay articles in commerce by means of
robbery. The District Court’s instructions, however, permitted conviction based
upon a finding that the defendants conspired to commit a robbery that could
incidentally affect commerce, whether or not the conspiracy involved an article in
commerce. Thus, according to Mr. Baptiste, the instructions amended the
indictment from one alleging a conspiracy to affect a commodity in commerce to
one alleging a conspiracy to rob any article with an incidental affect on commerce.
We reject Baptiste’s argument because it reflects a misreading of the
Superseding Indictment.6 Count One charged defendants with a conspiracy to
“obstruct, delay, and affect interstate commerce and the movement of articles and
commodities in commerce by means of robbery.” Although Count One defined

6

The government correctly notes that Baptiste failed to preserve the constructive
amendment issue by failing to raise an objection on such grounds at the time the District Court
issued its proposed jury instructions. The government, therefore, urges us to review the lower
court for plain error only. However, as explained above, the constructive amendment of an
indictment is per se reversible error. Carroll, 582 F.2d at 944–45.
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the conduct affecting commerce in the conjunctive—conspiracy to affect interstate
commerce and the movement of articles in commerce—our precedent is clear that
proof of only one act that is charged in the conjunctive with another act in the
same count is sufficient to support a conviction. United States v. Felts, 579 F.3d
1341, 1344 (11th Cir. 2009). In other words, “and” in Count One of the
Superseding Indictment really means “or.” Thus, the Superseding Indictment
charged Mr. Baptiste with conspiring to affect interstate commerce or the
movement of an article in commerce by means of robbery. See id. The District
Court’s instruction, therefore, did not allow Mr. Baptiste to be convicted of an
offense not charged in the indictment.
This being the case, Stirone is readily distinguishable. In Stirone, the Court
explained that “when only one particular kind of commerce is charged to have
been burdened a conviction must rest on that charge and not another.” Id. at 218,
80 S. Ct. at 274. Here, the Superseding Indictment identified two bases for the
alleged Hobbs Act conspiracy, such that the District Court jury instructions fell
within the range of conduct alleged in Count One.
5. Reasonableness of Sentence
In the Pre-Sentence Report (PSR), the probation officer determined that Mr.
Baptiste’s base offense level was 32, but that he was subject to a 4-level
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enhancement for his role as an organizer in the conspiracy, resulting in a total
offense level of 36. With a criminal history category of II, Mr. Baptiste’s
recommended guideline range was 210 to 262 months imprisonment. The
government objected to the PSR and requested a 2-level enhancement for perjured
testimony, which would correspond to a guideline range of 262 to 327 months. At
sentencing, the government proposed a sentence of 300 months.
The District Court adopted the PSR and also sustained the government’s
objection, finding that the proper guideline range was 262 to 327 months. The
Court then turned toward the sentencing factors under 18 U.S.C. § 3553(a). It
stated that “the nature and circumstances of the offense . . . [make it] about as
serious, short of murder, as it can get.” The Court further stated that, even though
Baptiste didn’t have the criminal record of persons who usually participate in this
type of offense, it had to consider adequate deterrence to future criminal conduct.
Then, the Court opined, “I think a sentence of imprisonment will give [Mr.
Baptiste] the needed educational/vocational training and the medical care and
other correctional treatment that is most effective.” The Court also noted that the
sentence had to reflect the seriousness of the offense, promote respect for the law
and provide just punishment for the offense. “[O]ne of the most important factors”
according to the Court was to “protect the public from further crimes of the
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defendant.” The Court found that this final factor required a substantial sentence.
Although no one was killed, the Court had “no question that [Mr. Baptiste]
intended, based upon his words and actions, [and] based upon using the other
defendants[,] to commit the home invasion robbery and kill the guards.” With
these factors in mind, the Court imposed the statutory maximum on three of the
four counts for which Mr. Baptiste was convicted.7 The sentence for each count
was imposed to run consecutive to the others for a total of 660 months. The Court
stated that even though Baptiste would be an old man by the time he got out of
prison, that was “the only thing that [could] protect society.” The Court
continued: “[s]ome individuals are beyond rehabilitation and I think Gary Baptiste
is one of them.”
We review sentencing decisions for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). The sentencing court must begin by correctly calculating the guideline
range and then consider the appropriate § 3553(a) factors. Id. at 49, 128 S. Ct. at
596. A district court abuses its discretion when it “gives significant weight to an

7

The District Court imposed the following sentences on each count: the 240 month
statutory maximum for Count One; the 240 month statutory maximum for Count Four; the sixty
month mandatory minimum for Count Five; and the 120 month statutory maximum for Count
Six.
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improper or irrelevant factor.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (quotation marks omitted). The Supreme Court has recently
held that, under 18 U.S.C. § 3582(a), a sentencing court “may not impose or
lengthen a prison sentence to enable an offender to complete a treatment program
or otherwise to promote rehabilitation.” Tapia v. United States, — U.S. —, —,
131 S. Ct. 2382, 2393 (2011).
Mr. Baptiste argues that the District Court violated Tapia, that it lacked
evidence to support that he is beyond rehabilitation, and that imposing consecutive
sentences was inappropriate. We address each argument in turn.
Tapia tells us that a district court may not, under 18 U.S.C. § 3582(a),
consider rehabilitation in deciding whether to impose imprisonment, or in deciding
the length of imprisonment. However, the District Court here relied primarily on
the seriousness of the crime in crafting the length of the sentence. It only
mentioned medical and correctional treatment once in passing, suggesting that this
factor ultimately played little if any role in the Court’s analysis. This distinguishes
Mr. Baptiste’s case from Tapia, where the sentencing court twice mentioned the
need for drug rehabilitation, and described the need for treatment as the “number
one” factor in sentencing. Tapia, 131 S. Ct. at 2385, 2392–93. Therefore, we hold
that the District Court did not violate Tapia in sentencing Mr. Baptiste.
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We also reject Mr. Baptiste’s argument that inadequate evidence supported
the District Court’s finding that he was beyond rehabilitation. At its core, the
District Court’s finding on rehabilitation was based on the risk that Mr. Baptiste
posed to public safety because the offense was “about as serious, short of murder,
as it can get.” Mr. Baptiste challenges this determination by arguing that the
Court’s finding as to the severity of his crime was unreasonable. We cannot agree.
The record contains Mr. Baptiste’s statements indicating that he was willing to kill
the stash house guards if necessary, and evidence showed that he was arrested with
a number of firearms, including an assault rifle, and over 100 rounds of
ammunition.
Finally, Mr. Baptiste urges this Court to hold that imposition of consecutive
sentences for Counts Four, Five and Six was improper. He draws our attention to
28 U.S.C. § 994(l)(2), which instructs the Sentencing Commission to ensure that
the Sentencing Guidelines reflect “the general inappropriateness of imposing
consecutive terms of imprisonment for an offense of conspiring to commit an
offense . . . and for an offense that was the sole object of the conspiracy or
solicitation.” Mr. Baptiste notes that he received a maximum twenty-year
sentence for the § 924(o) conspiracy to possess a firearm in furtherance of a drug
trafficking crime, in addition to the five-year sentence for the § 924(c) conviction
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for carrying and using a firearm during a drug trafficking crime, and the maximum
ten-year sentence for the § 924(g)(1) conviction for possession of a firearm by a
convicted felon. He argues that § 994(l)(2) renders consecutive sentencing on
these counts inappropriate.
Mr. Baptiste’s argument does not carry the day. First, § 994(l)(2) does not,
in and of itself, prohibit the imposition of consecutive sentences for a substantive
offense and a conspiracy to commit that offense. United States v. Wade, 788 F.2d
722, 722 (11th Cir. 1986); see also United States v. Saccoccia, 58 F.3d 754, 787
(1st Cir. 1995). Second, § 924(c) expressly provides that any sentence imposed
under that sub-section shall not run concurrently to another sentence, meaning that
it must be consecutive. 18 U.S.C. § 924(c)(1)(D)(ii); see also United States v.
Dowd, 451 F.3d 1244, 1252 (11th Cir. 2006). Thus, we cannot say that the
District Court’s decision to impose consecutive sentences on the § 924(c) and
§ 924(o) convictions was inappropriate under § 994(l)(2). That leaves only his
sentence under § 924(g)(1), possession of a firearm by an armed felon. But that is
not the substantive offense contemplated by his § 924(o) offense, which was
conspiracy to possess a firearm in furtherance of a drug trafficking crime.
Therefore, we also cannot say that imposition of the consecutive sentences for his
§ 924(g)(1) and § 924(o) convictions was inappropriate under § 994(l)(2).
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6. Conclusion
For these reasons, we affirm Mr. Baptiste’s convictions and sentence. We
note that Baptiste raises other issues on appeal,8 but in our view these additional
claims do not merit discussion.
B. Mr. Raphael
Mr. Raphael challenges his conviction and sentence on a number of
grounds. As with Mr. Baptiste, we discuss his strongest arguments, and describe
the relevant facts as they apply to each issue.
1. Sufficiency of the Evidence
Mr. Raphael moved for judgment of acquittal at the close of the
government’s case in chief, arguing that the government failed to prove he knew
the object of the conspiracy was cocaine. The District Court denied the motion,
but it acknowledged that the question was “close.” The Court later instructed the
jury that the government had to prove that the defendants knew the object of the
conspiracy was to rob cocaine. The jury ultimately returned a verdict convicting
Mr. Raphael of Count One, which charged him with conspiracy to commit robbery
8

Baptiste argues that the District Court’s Allen charge was unduly coercive; that the
Hobbs Act is unconstitutional; and that the District Court’s reliance on uncharged and unproven
conduct at sentencing violated his Fifth and Sixth Amendment rights. Each of these claims is
foreclosed by circuit precedent. See United States v. Taylor, 480 F.3d 1025, 1027 (11th Cir.
2007); United States v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006); United States v.
Dickerson, 248 F.3d 1036, 1050 (11th Cir. 2001).
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under the Hobbs Act.
This Court reviews de novo the sufficiency of the evidence supporting a
conviction, drawing all reasonable inferences in the light most favorable to the
jury’s verdict. United States v. Gowdy, 628 F.3d 1265, 1267 (11th Cir. 2010); see
also United States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011).
The Hobbs Act makes it a crime to “in any way or degree obstruct[], delay[],
or affect[] commerce or the movement of any article or commodity in commerce,
by robbery . . . or conspire[] so to do.” 18 U.S.C. § 1951(a). In order to sustain a
conviction for a Hobbs Act conspiracy, the government must prove that 1) “two or
more persons agreed to commit a crime” under the Hobbs Act; 2) “the defendant
knew of the conspiratorial goal”; and 3) “he voluntarily participated in helping to
accomplish that goal.” United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir.
1993) (quotation marks omitted); see also United States v. Pringle, 350 F.3d 1172,
1176 (11th Cir. 2003).
Mr. Raphael argues that the evidence presented at trial did not establish that
he knew the conspiratorial objective was to rob cocaine. He asserts that while the
evidence might be sufficient to prove that he was part of a conspiracy to commit
robbery, this is not sufficient to sustain a Hobbs Act conviction. He points us to
two cases he believes are particularly instructive. First, in United States v.
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Martinez, 83 F.3d 371 (11th Cir. 1996), we addressed the sufficiency of the
evidence for a conspiracy to possess cocaine, and to possess cocaine with intent to
distribute, in violation of 21 U.S.C. §§ 846 and 841. Id. at 373. The defendants
were arrested after breaking and entering a house and taking suitcases loaded with
fake and real cocaine. Id. We reversed the convictions for one of the defendants,
holding that there was not enough evidence to support a jury finding that he knew
he was going to the house to steal cocaine. Id. at 374. Specifically, we noted the
government failed to show that the “[lead conspirator]—or anyone else—ever told
[the defendant] that the true object of the burglary was cocaine.” Id. We rejected
the government’s argument that knowledge could be inferred from a coconspirator’s statement that he had “men and guns ready.” Id.
In United States v. Charles, 313 F.3d 1278 (11th Cir. 2002), we also
considered a conspiracy conviction under §§ 846 and 841. In Charles, the
defendants arranged to burglarize and steal cocaine from a stash house. Id. at
1283–84. On the evening of the heist, one defendant met with the conspirators in a
hotel room. He then rode with two conspirators to the target home, and remained
in the car while the two conspirators entered the house. At this point, they were all
arrested. Id. at 1282. We held that the evidence against the defendant, while it
might have been sufficient to support a robbery conviction, was insufficient to
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sustain his convictions under §§ 846 and 841. Id. at 1283–84. Citing Martinez,
we rejected the argument that the defendant’s presence in the hotel room with the
other conspirators, and his transportation of the two conspirators to the target
house, sufficed to permit the inference that he knew the object of the conspiracy
was to possess cocaine. Id. at 1284–85.
Mr. Raphael relies on Martinez and Charles to argue that, while the
evidence might be sufficient to prove that he was part of a conspiracy to commit
robbery, it did not establish his knowledge of cocaine as the object of the
conspiracy. In response, the government argues that the evidence is sufficient to
permit the jury to infer Raphael’s knowledge of the conspiratorial goal. The
government also argued, for the first time at oral argument, that the holdings of
Martinez and Charles are limited to §§ 846 and 841 conspiracy convictions, and
therefore are inapplicable to Hobbs Act conspiracy convictions.
Turning first to the government’s eleventh-hour argument that the holdings
of Martinez and Charles, as drug possession conspiracy cases, do not apply to
Hobbs Act conspiracy cases, “we do not consider arguments not raised in a party’s
initial brief and made for the first time at oral argument.” Holland v. Gee, 677

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F.3d 1047, 1066 (11th Cir. 2012) (quotation marks omitted).9 Therefore, we turn
to the question of whether there was sufficient evidence to support the jury’s
finding that Mr. Raphael knew the object of the conspiracy was cocaine. Not
surprisingly, the government answers that question in the affirmative. It argues
that what really distinguishes Mr. Raphael’s case from Charles and Martinez is the
“existence of documented contacts between [Mr. Raphael’s] telephone number and
organizer-Baptiste’s number at every juncture leading up to their appearances at
the warehouse.” In fact, the phone records demonstrate that Mr. Baptiste, the
organizer, called Mr. Raphael within a couple hours after his meetings with
Detective Sanchez on January 27, February 1, and February 18—meetings at
which Baptiste discussed cocaine in detail as the objective of the armed robbery.
Mr. Raphael was also in communication with Mr. Baptiste and other conspirators
the night before the planned robbery. On the day of the robbery, Mr. Raphael sent
Mr. Baptiste a number of text messages, including instructions to “get tie strap” to

9

The government also submitted supplemental authority suggesting that the District
Court erroneously added the knowledge of cocaine element to the Hobbs Act conspiracy count.
See, e.g., United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2002) (“[T]he jury instruction
may not become law of the case if both (1) it is patently erroneous and (2) the issue is not
misstated in the indictment.”). However, we are not persuaded by this argument. The
government unequivocally stipulated at a pretrial conference that the defendants could only be
convicted of the Hobbs Act conspiracy charge if they had knowledge the object of the conspiracy
was cocaine. Therefore, we cannot say that the District Court erred in its jury instructions when it
required that the government prove the defendants knew the object of the conspiracy was to rob
cocaine. Cf. id.
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“use as handcuffs.” The two remained in periodic contact for the rest of the day
leading up to the would-be robbery and raid.
We agree that these facts, construed in the light most favorable to the
government, distinguish Mr. Raphael’s case from Charles and Martinez, insofar as
they present sufficient evidence for a reasonable jury to find Mr. Raphael was an
active participant in planning the robbery. Cf. Charles, 313 F.3d at 1286 (noting
defendant’s passive role). From the text messages in which Mr. Raphael directed
Mr. Baptiste to purchase tools for the robbery, a jury could reasonably infer that
Mr. Raphael played a substantial role in planning the scheme. And based on Mr.
Raphael’s role in assisting Mr. Baptiste to plan the heist, a jury could reasonably
infer that the two men discussed the objective of the robbery—cocaine—after at
least one of the meetings Mr. Baptiste had with Detective Sanchez. We believe
that this evidence is sufficient to take an inference that Raphael had knowledge of
the conspiratorial objective beyond the realm of mere speculation.
2. Reasonableness of the Sentence
The PSR assigned Mr. Raphael a base offense level of 20 under U.S.S.G.
§ 2B3.1(a). It recommended a 5-level enhancement for possession of a firearm
under § 2B3.1(b)(2)(C), and a 1-level enhancement for cocaine as the object of the
robbery under § 2B3.1(b)(6), for a total offense level of 26. With a criminal
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history category of I, the recommended guideline range was 63 to 78 months.
Mr. Raphael filed objections to the PSR. The government filed a motion
seeking an upward departure, arguing that the criminal history category of I
understated Mr. Raphael’s past criminal activity, which included acquitted charges
of purchasing untraceable guns and possessing illegal firearms. The government
recommended a sentence of 15 years. At sentencing, the District Court found that
adequate evidence supported the enhancement for possession of a firearm under
§ 2B3.1(b)(6), citing the 9mm magazine clip and holster on Raphael’s person, and
a matching 9mm handgun found in the Ford Taurus. The District Court adopted
the PSR in all respects, finding that the guideline range was 63 to 78 months.
In considering the § 3553(a) factors, the District Court highlighted the
seriousness of the offense, the need for punishment, the need to protect the public,
and the seriousness of Raphael’s prior acquitted firearms offenses. The Court
denied the government’s request for an upward departure, but then imposed an
upward variance, increasing the sentence over the maximum of the guideline range
to 120 months, “because the criminal history [was] not properly reflected” in the
guideline range, and because the upward variance would “protect the public from
further crimes of the defendant.”
Mr. Raphael argues that the District Court, by allowing the 5-level
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enhancement for firearm possession, subjected him to punishment for a charge of
which he was acquitted. As for the cocaine enhancement, Raphael contends the
District Court subjected him to punishment for a crime for which he was never
charged. Finally, Mr. Raphael contends that the District Court failed to consider
any § 3553(a) factors in imposing the upward variance other than his criminal
history. Each of these arguments fails.
Circuit precedent allows district courts to calculate prison sentences based
on acquitted conduct, provided that the sentence does not exceed the statutory
maximum,10 and the sentence is supported by a preponderance of the evidence.
United States v. Campbell, 491 F.3d 1306, 1314 n.11 (11th Cir. 2007). Thus,
Raphael’s argument that the District Court improperly considered his acquitted
firearms charges fails. As to Raphael’s claim that he was convicted of uncharged
conduct for his cocaine enhancement, circuit precedent also permits the
consideration of uncharged conduct in determining sentencing levels. See, e.g.,
United States v. Miller, 166 F.3d 1153, 1155 (11th Cir. 1999). Beyond that, this
argument depends on the erroneous conclusion that Count One of the Superseding
Indictment did not cover cocaine as an element of the charged offense. Finally,

10

Mr. Raphael’s sentence did not exceed the Hobbs Act statutory maximum of twenty
years. See 18 U.S.C. § 1951(a).
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the record does not support Raphael’s claim that the District Court only
considered his criminal history in applying the § 3553(a) factors.
3. Conclusion
Although Raphael raises other issues on appeal,11 these claims do not merit
discussion. We therefore affirm Raphael’s conviction and sentence.
IV. CONCLUSION
The convictions and sentences of Gary Baptiste and Kerry Raphael are
AFFIRMED.

11

Raphael argues that the District Court erroneously admitted statements by his coconspirators under Federal Rule of Evidence 801(d)(2)(E); that the Court erred in denying his
motion to suppress data retrieved from his cell phone; that it erred in denying his motion to
dismiss the Superseding Indictment for lack of specificity; that it erred in denying his motion to
strike the alias “Gargoyle”; and that it erred in denying his motion for mistrial based on the
government’s comments at closing argument.
37