USA v. Garza-Robles


PUBLISHED OPINION FILED. [07-40747 Affirmed 07-40754 Affirmed 07-40789 Affirmed ] Judge: EBC , Judge: LHS , Judge: CH Mandate pull date is 12/20/2010 for Appellant Jose A Garza-Robles and Appellant Hector Herrera-Sifuentes [07-40747, 07-40754, 07-40789]

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USA v. Garza-Robles ase: 07-40747 C Document: 00511305705 Page: 1 Date Filed: 11/29/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED November 29, 2010 N o . 07-40747 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA P la in t iff - Appellee v. J O S E A GARZA-ROBLES, also known as Jose Alberto Garza-Robles, also k n o w n as Betio, also known as Beto; HECTOR HERRERA-SIFUENTES, also known as Checo D e fe n d a n t s - Appellants A p p e a ls from the United States District Court fo r the Southern District of Texas B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. L E S L I E H. SOUTHWICK, Circuit Judge: Tw o codefendants appeal from their convictions for kidnapping and c o n s p ir a c y to kidnap. Both argue the evidence is insufficient to sustain their c o n v ic t io n s , while one claims an error in sentencing. We AFFIRM. FACTS R a m o n e Santiago Hernandez, Jr. was a drug trafficker living in Laredo, T e x a s . In June 2006, Hernandez was in the border city of Miguel Aleman, M e x ic o , which is joined with Roma, Texas by a bridge over the Rio Grande. He w a s attempting to set up a drug transaction. While there, Hernandez met one Case: 07-40747 Document: 00511305705 Page: 2 Date Filed: 11/29/2010 No. 07-40747 o f the defendants, Jose Garza-Robles. The latter introduced Hernandez to E u la lio Suarez-Sifuentes, who was known as "Lalo." Hernandez was aware that L a lo and Garza-Robles were members of a drug cartel known as the Gulf Cartel, a n d that Lalo was a high-ranking member. L a lo and Hernandez developed a professional relationship in a criminal s e n s e . Eventually, Lalo asked Hernandez to obtain new customers in the United S t a te s for his marijuana. Hernandez arranged for the sale of about 650 pounds o f marijuana to Samuel Gonzalez in Houston, Texas. Hernandez was to be a m id d le m a n in the transaction, delivering Lalo's drugs to Gonzalez and G o n z a le z 's money to Lalo. Prior to the delivery, Hernandez traveled to Houston a n d visited Gonzalez's house seven or eight times to determine whether G o n z a le z could be trusted. After Hernandez met Gonzalez but before the m a r iju a n a was delivered, Lalo told Garza-Robles to go to Houston so that he c o u ld assist Hernandez with the transaction and protect Lalo's interest. T h e marijuana shipment arrived in Houston in late August 2006. H e r n a n d e z loaded it into a Chevrolet Yukon belonging to Gonzalez's cousin. Gonzalez was not home when Garza-Robles and Hernandez arrived at night with t h e drugs. They parked the Yukon with its cargo in Gonzalez's garage, planning t o return the next morning to collect $110,500 owed to Lalo. T h e next day, the pair returned to Gonzalez's house and learned he had fle d with his family, the Yukon, and the marijuana. Garza-Robles and H e r n a n d e z unsuccessfully searched for Gonzalez that day. In the afternoon, G a r z a -R o b le s finally called Lalo and explained what had occurred. When H e r n a n d e z got on the telephone, Lalo told him that he wanted both men to come t o Mexico and explain the situation in person. L a t e r that night, Lalo called and initially spoke to both men on a speaker p h o n e . At some point, Lalo told Garza-Robles to turn off the speaker phone, and t h e two spoke privately. While on the phone with Lalo, Garza-Robles turned to 2 Case: 07-40747 Document: 00511305705 Page: 3 Date Filed: 11/29/2010 No. 07-40747 H e r n a n d e z and encouraged him to travel to Miguel Aleman, Mexico. Hernandez s t a t e d that he was scared to face Lalo. Garza-Robles said they would be in t r o u b le and that he also was scared. They left for Mexico the next day. Lalo c a lle d several times while they were driving to ensure they were en route. A lo n g the way, Hernandez tried to arrange for police to arrest him so he w o u ld not have to face Lalo. Hernandez called the Texas state police from a rest a r e a when Garza-Robles stopped to take a nap. He told the police officer that G a r z a -R o b le s had a small amount of drugs on him and gave the police the v e h ic le description and license plate number. Hernandez's attempts to be a p p r e h e n d e d before entering Mexico were unsuccessful. Prior to crossing the border, the two men stopped in Laredo so Hernandez c o u ld take a shower and change his clothes. At that time, Hernandez called his fa t h e r who advised him to meet with Lalo to show good faith and to convince him o f what happened. While in Laredo, Hernandez again told Garza-Robles that he d id not want to see Lalo. Garza-Robles responded that they needed to explain t h e situation together. O n September 1, the two arrived at Lalo's estate in Miguel Aleman, M e x ic o , which was called Casa Amarilla. Between 10 and 15 heavily-armed men w e r e present when Hernandez and Garza-Robles arrived. Among them was L a lo 's cousin, the defendant Hector Herrera-Sifuentes. Lalo arrived a half-hour la t e r armed with a machine gun and hand grenades. Lalo initially appeared fr ie n d ly as Hernandez explained what happened. Lalo then told Hernandez he w o u ld have to pay $110,500 for the lost drugs, and that Hernandez could not le a v e until he paid. At Lalo's signal, the gates to Casa Amarilla shut. Lalo t h r e a te n e d Hernandez that his family would be killed if he left. in s t r u c t e d the guards to shoot Hernandez if he tried to escape. D u r in g his 16-day detention, Hernandez was under constant guard. He w a s threatened and brutalized. The defendants Garza-Robles and Herrera3 He also Case: 07-40747 Document: 00511305705 Page: 4 Date Filed: 11/29/2010 No. 07-40747 S ifu e n t e s guarded Hernandez at various times during his detention. Both were p r e s e n t when Hernandez was blindfolded, hit in the face with a gun, kicked in t h e ribs, and threatened with death while someone made the sign of a cross on h im with a gun. Because he was blindfolded, Hernandez did not know which g u a r d s were beating him. Among other forms of abuse, he was punched and k ic k e d , beaten with two-by-fours across his bare buttocks, sliced behind the ear w it h razors, wrapped in plastic wrap and beaten, had a gun shoved in his mouth, a n d had guns fired very close to his ears. While detained, Hernandez was permitted to use his cell phone to arrange p a y m e n t s to Lalo. Hernandez's father collected $57,500 of Hernandez's money b u t understandably refused to take it to Mexico. On September 2, Lalo sent G a r z a -R o b le s to get the money from Hernandez's father in Roma, Texas. The p a y m e n t was collected without incident. Hernandez also arranged for his Lalo sent g ir lfr i e n d in Texas to make another payment on September 16. a n o t h e r of his operatives, Licensiado, to meet Hernandez's girlfriend in Roma a n d escort her and the money to Miguel Aleman. At some point between the two payments, Hernandez's family notified the F B I that he was being held for ransom in Mexico. Prior to their entering Mexico, t h e FBI detained Hernandez's girlfriend and Licensiado. The FBI had L ic e n s ia d o call Lalo to tell him they were detained and that the FBI knew Lalo w a s holding Hernandez. After first pretending to be confused, Lalo eventually p e r m it t e d Hernandez to walk across the international bridge from Miguel A le m a n to Roma. L a lo instructed Hernandez to tell the FBI that he had not been kidnapped a n d warned Hernandez that Lalo would come after him if he did not return to M ig u e l Aleman with the rest of the money. Hernandez agreed to follow Lalo's in s t r u c t io n s and return with the money. FBI agents met Hernandez halfway 4 Case: 07-40747 Document: 00511305705 Page: 5 Date Filed: 11/29/2010 No. 07-40747 a c r o s s the bridge, searched him for weapons, and brought him to Laredo for d e b r ie fin g . Hernandez agreed to cooperate with the FBI. A t the FBI's direction, Hernandez told Lalo over the telephone he would r e t u r n to pay the remainder of the debt. Lalo explained that he was in trouble w it h his drug cartel superiors. They thought Hernandez had paid Lalo $200,000 fo r the missing marijuana. His superiors also were upset that Lalo did not seek p e r m is s io n for the kidnapping. Lalo told Hernandez to return to Miguel Aleman a n d explain that he had not been kidnapped and that he only had paid $57,500. Lalo informed Hernandez he would send Herrera-Sifuentes to Laredo and bring H e r n a n d e z back to Miguel Aleman. Herrera-Sifuentes and Garza-Robles t r a v e le d to Laredo to pick up Hernandez. As the meeting was about to start, the F B I moved in and arrested the defendants. B o t h defendants were charged with kidnapping and conspiring to kidnap H e r n a n d e z in foreign commerce from the United States to Mexico. See 18 U.S.C. 1201. Garza-Robles also was charged with receipt of ransom money. See id. 1202. They were jointly tried and convicted on all counts. They received life s e n te n c e s for the kidnapping and conspiracy convictions. Garza-Robles received a n additional 120-month sentence to run concurrently with his life sentence for t h e receipt of ransom money conviction. Both filed timely notices of appeal. D IS C U S S IO N A. S u ffic ie n c y of the Evidence G a r z a -R o b le s and Herrera-Sifuentes challenge the sufficiency of the e v id e n c e supporting their convictions for kidnapping and conspiracy. W h e r e defendants have preserved a challenge to the sufficiency of the e v id e n c e , as Garza-Robles and Herrera-Sifuentes have, we review the denial of a judgment of acquittal de novo. United States v. Burns, 162 F.3d 840, 847 (5th C ir . 1998) (citation omitted). We determine whether, when viewing the evidence in the light most favorable to the verdict, "a rational trier of fact could have 5 Case: 07-40747 Document: 00511305705 Page: 6 Date Filed: 11/29/2010 No. 07-40747 fo u n d that the evidence established the essential elements of the offense beyond a reasonable doubt." United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2 0 0 0 ). 1. K id n a p p in g T h e elements under this kidnapping statute are: "(1) the transportation in interstate [or foreign] commerce (2) of an unconsenting person who is (3) held fo r ransom or reward or otherwise, (4) such acts being done knowingly and w illfu lly ." United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001) (citation o m it t e d ); see 18 U.S.C. 1201(a)(1). There must be proof that the victim was u n la w fu lly seized, confined, inveigled, kidnapped, abducted, or carried away. 18 U .S .C . 1201(a). Lack of consent is the only element in dispute. The Government had to show Hernandez was transported in foreign c o m m e r c e after he was seized or confined involuntarily in some manner. See U n ite d States v. McRary, 665 F.2d 674, 678 (5th Cir. 1982). "[N]on-physical r e s t r a in t for instance, fear or deception can be sufficient to restrain a person a g a in s t [his] will." United States v. Carrion-Caliz, 944 F.2d 220, 225 (5th Cir. 1 9 9 1 ). The Government presented two theories on this question. One was that H e r n a n d e z was inveigled into accompanying Garza-Robles into Mexico. The o t h e r was that Hernandez went to Mexico only out of fear for his own and his fa m ily 's safety. The Government urged both theories in its closing argument: T h e r e were two things going on there. One was [Hernandez's] fe a r . He had to go. Trying to think of any way he could be stopped fr o m going . . . . T h e other thing [that] was operating was Lalo's, on his face, t h e words that he was saying, "Come on over here and we'll talk a b o u t it, and you tell us what is going on." J u r o r s were given an instruction that Hernandez would have crossed the in t e r n a t io n a l border involuntarily if he was either seized or inveigled. The g e n e r a l verdict jurors reached did not reveal which theory was accepted. If the 6 Case: 07-40747 Document: 00511305705 Page: 7 Date Filed: 11/29/2010 No. 07-40747 e v id e n c e was sufficient to support one theory, the fact that the evidence was in s u ffic ie n t to support another of the theories does not negate the verdict. Griffin v. United States, 502 U.S. 46, 59-60 (1991); United States v. Edwards, 3 0 3 F.3d 606, 641 (5th Cir. 2002). We examine each theory. W e first look at the evidence that Hernandez was inveigled into Mexico. The word "inveigle," a jury instruction stated, "means to lure, or entice, or lead t h e person astray by false representations or promises, or other deceitful m e a n s ." The Government argued that Hernandez was inveigled into a c c o m p a n y in g Garza-Robles to Mexico under the false belief that he simply was g o in g to explain to Lalo in person what happened to the lost load of drugs. The evidence does not support the Government's theory. The jurors could n o t reasonably find that Hernandez was oblivious to the risks awaiting him in M e x ic o . Though he testified he was unaware he would be detained and b r u t a liz e d , meaning he did not know the exact form his troubles might assume, h e knew that he and his family were at significant risk. After Garza-Robles told L a lo of the lost drugs, Garza-Robles turned to Hernandez and said, "We're going t o be in trouble, you know." Hernandez repeatedly told Garza-Robles he was s c a r e d and did not want to go to Miguel Aleman. Hernandez testified that he k n e w more or less what to expect by going to Mexico. He hoped, though, that m e e t in g Lalo in person might give him "a chance," apparently meaning a chance t o live. He admitted he knew he would be held accountable for the value of the lo s t drugs. Acting FBI Supervisor Arturo Fuentes testified that the Gulf Cartel fr e q u e n t ly committed drug-related kidnappings. Fuentes testified that "if you lo s e a drug load, if you are working for the Gulf Cartel, they expect you to pay t h a t money back. And if you don't pay it back, your family members or you will b e kidnapped until you pay that money back." He stated the propensity to k id n a p sets the Gulf Cartel apart from other Mexican drug cartels. Hernandez 7 Case: 07-40747 Document: 00511305705 Page: 8 Date Filed: 11/29/2010 No. 07-40747 w a s aware he was working for the Gulf Cartel, and as we have indicated, he k n e w he faced substantial risks whether or not he went to Mexico to face Lalo. There was evidence that Lalo sought to deceive Hernandez, but there was in s u ffic ie n t evidence that the deception was successful and that Hernandez v o lu n t a r ily journeyed to Mexico. If the evidence had supported that deception c a u s e d Hernandez to cross the border, we would then need to address the impact o f our precedents that conclude this kidnapping offense does not occur by the " e n t ir e ly voluntary act of a victim in crossing a state line even though it is in d u c e d by deception." United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir. 1 9 7 9 ); see also McRary, 665 F.2d at 677. The Government argues this rule is l i m i t e d to situations in which the victim took himself across a state line. Because of our holding that there was insufficient evidence to support the in v e ig le m e n t theory, the legal issues are moot. B e fo r e deciding to defer issues that arise under McInnis and McRary, we c o n s id e r e d that the Supreme Court has distinguished between a general verdict t h a t might be based on a factually unsupported theory and one possibly based o n a legally inadequate theory. Griffin, 502 U.S. at 59. Because jurors "are well e q u ip p e d to analyze the evidence" and reject factually unsupported grounds in d e e d , such is a key role for jurors a verdict of guilt should be sustained as p r e s u m a b ly not being based on a ground for which there was insufficient proof. Id. (emphasis omitted). Conversely, jurors would not have reason to consider w h e t h e r a theory was legally flawed; consequently, their own good judgment w o u ld not have saved them from an error about the law. Id. We have held, t h o u g h , that a general verdict is sustainable when the theory that was factually u n s u p p o r t e d was also legally unavailable. United States v. Wilson, 116 F.3d 1 0 6 6 , 1080 (5th Cir. 1997), rev'd on other grounds, United States v. Brown, 161 F .3 d 256, 257 n.1 (5th Cir. 1998) (en banc). We conclude that jurors in the p r e s e n t case would have rejected the unsupported theory due to insufficient 8 Case: 07-40747 Document: 00511305705 Page: 9 Date Filed: 11/29/2010 No. 07-40747 e v id e n c e , a rejection in no way made more or less likely because of the legal in a d e q u a c y that may also exist. W e now examine the sufficiency of the evidence to support the other t h e o r y . It was not necessary that Hernandez be "physically restrained or c o n fin e d ," as non-physical restraint arising from fear is enough to support a k id n a p p in g conviction. Carrion-Caliz, 944 F.2d at 225. Being restrained against o n e 's will is the key. Id. A person's will can be overcome physically or by mental in d u c e m e n t s such as threats. Chatwin v. United States, 326 U.S. 455, 460 (1 9 4 6 ). Hernandez's being sufficiently frightened to travel to Mexico against his w ill supports a jury finding that he was seized or confined. A jury instruction e x p la in e d that to kidnap meant to "hold, keep, detain, and confine the person a g a in s t that person's will. Involuntariness or coercion in connection with d e t e n t io n " were part of the offense. F r o m the beginning, Hernandez told Garza-Robles he was scared to a c c o m p a n y him to Mexico. Hernandez insisted that Garza-Robles drive to M e x ic o because Hernandez was too nervous to drive. Hernandez testified that h e had no choice but to meet Lalo in person because "if you don't show your face, t h e y 'r e going to come and kill your family. That's the way they work." On the w a y to Mexico, Hernandez called the Texas state police in an attempt to be a r r e s t e d . Hernandez testified he told a police officer that he "was being kind of fo r c e d [to] go[] to Mexico, that [he] didn't want to go because [he] was scared [he] w a s not going to come back." The attempt to be apprehended was unsuccessful. When questioned why he did not just get out of the truck and run, Hernandez r e s p o n d e d , "I was scared." P r io r to crossing the border, the pair stopped in Laredo, and Hernandez a g a in told Garza-Robles he did not want to go see Lalo. Garza-Robles insisted t h a t Hernandez had to explain in person what happened with the lost drugs. 9 Case: 07-40747 Document: 00511305705 Page: 10 Date Filed: 11/29/2010 No. 07-40747 W h e n Garza-Robles and Hernandez reached the border, Hernandez did n o t inform the border patrol agent of his predicament. Hernandez explained, " Y o u know, I wanted to get out . . . at that time; I mean, I didn't want to cross to M ig u e l Aleman, but I was just scared about everything, that they were going to c o m e and get my family." R a t io n a l jurors could conclude that Hernandez's travel to Mexico was not v o lu n t a r y . They could reasonably find that Hernandez, seized by fear of what c o u ld happen to him and his family, traveled to Mexico against his will. Accordingly, the evidence was sufficient to support Garza-Robles' and HerreraS ifu e n t e s ' convictions for kidnapping. 2. C o n s p ir a c y to Kidnap G a r z a -R o b le s challenges his conviction for conspiracy to commit k id n a p p in g . He contends that even if there were a conspiracy to kidnap H e r n a n d e z , there is no evidence he was aware of it when he transported H e r n a n d e z in foreign commerce. T o prove conspiracy to commit kidnapping, the Government must e s t a b lis h : (1) the existence of an agreement between two or more people to p u r s u e the offense of kidnapping; (2) the defendant knew of the agreement; and (3 ) the defendant voluntarily participated in the conspiracy. See United States v . Montgomery, 210 F.3d 446, 449 (5th Cir. 2000) (citation omitted); 18 U.S.C. 1 2 0 1 (c ). "Direct evidence of a conspiracy is unnecessary; each element may be in fe r r e d from circumstantial evidence." United States v. Mitchell, 484 F.3d 762, 7 6 8 -6 9 (5th Cir. 2007) (citation omitted). The record contains sufficient evidence from which the jury could infer G a r z a -R o b le s was aware of and acted in accordance with a plan to kidnap H e r n a n d e z . We highlight some of that evidence, though we have also discussed it earlier. Lalo wanted Garza-Robles to go to Houston and assist Hernandez w it h the drug transaction and protect Lalo's interest. After the drug load was 10 Case: 07-40747 Document: 00511305705 Page: 11 Date Filed: 11/29/2010 No. 07-40747 lo s t , Garza-Robles telephoned Lalo and informed him of what happened. A c c o r d in g to Hernandez, Lalo spoke with Garza-Robles privately for an extended p e r io d of time. Garza-Robles then handed the telephone to Hernandez. Lalo t o ld Hernandez that he and Garza-Robles needed to come to Miguel Aleman and e x p l a i n the situation in person. Lalo called back later that evening. GarzaR o b le s initially had Lalo on speaker phone, but Lalo requested he turn off the s p e a k e r phone. During the private conversation, Garza-Robles turned to H e r n a n d e z and said, "You know what, let's go. Let's go." L a lo repeatedly called Garza-Robles as the pair traveled to Mexico. When H e r n a n d e z expressed his concern of facing Lalo, Garza-Robles insisted he had t o go with him to Mexico. After arriving at Casa Amarilla, Lalo informed H e r n a n d e z he would be confined there until he paid for the lost load. Hernandez t e s t ifie d that Garza-Robles was one of the guards who watched him and was p r e s e n t during many of his beatings. Garza-Robles also went to Texas to pick u p ransom money from Hernandez's father. In addition, FBI Supervisor Fuentes t e s t ifie d to the Gulf Cartel's propensity to commit kidnappings. Garza-Robles d id not dispute he was a member of the Gulf Cartel. H e r r e r a -S ifu e n t e s has not briefed a challenge to his conspiracy conviction o n appeal. We simply note that because Herrera-Sifuentes admitted that he g u a r d e d Hernandez at Casa Amarilla, there is sufficient evidence he entered the k id n a p p in g conspiracy at least by the time Hernandez was in Mexico. Joining a conspiracy after a victim has been transported in foreign commerce creates c r im in a l responsibility for the prior acts. C o n tr e r a s , 972 F.2d 111, 114 (5th Cir. 1992). T h e r e is sufficient evidence from which a rational jury could conclude that G a r z a -R o b le s and Herrera-Sifuentes knew of the conspiracy and were acting in fu r t h e r a n c e of that conspiracy when Garza-Robles transported Hernandez in fo r e ig n commerce and when they both guarded Hernandez in Mexico. 11 See United States v. Barksdale- Case: 07-40747 Document: 00511305705 Page: 12 Date Filed: 11/29/2010 No. 07-40747 B. Sentence Enhancement G a r z a -R o b le s argues that the district court erred in imposing a two-level e n h a n c e m e n t for inflicting serious bodily injury upon Hernandez. Garza-Robles c la im s that although Hernandez was treated inhumanely and in a manner that s h o c k s the conscience, he did not sustain "serious bodily injuries" as this term is defined in the Sentencing Guidelines. This court reviews a district court's factual findings in sentencing for clear e r r o r . United States v. Jimenez, 323 F.3d 320, 322 (5th Cir. 2003). "A factual fin d in g is not clearly erroneous as long as it is plausible in light of the record as a whole." Id. at 322-23. A defendant convicted of kidnapping can receive a two-level enhancement " if the victim sustained serious bodily injury" while detained. U.S. Sentencing G u id e lin e s Manual 2A4.1(b)(2)(B). The Guidelines define "serious bodily in ju r y " as "injury involving extreme physical pain or the protracted impairment o f a function of a bodily member, organ, or mental faculty; or requiring medical in t e r v e n t io n such as surgery, hospitalization, or physical rehabilitation." U.S. S e n te n c in g Guidelines Manual 1B1.1 app. n.1(L). Even if the defendant did n o t inflict the serious bodily injury, he can still be assessed the enhancement as lo n g as he knew such injuries were being inflicted. See United States v. Davis, 1 9 F.3d 166, 171 (5th Cir. 1994). The presentence report indicates that Hernandez had been assaulted r e p e a t e d ly resulting in a broken rib, bruised buttocks, and cuts behind the ears. It was plausible for the district court to conclude these injuries involved " e x tr e m e pain" and therefore qualified as serious bodily injuries. Based on these injuries, the district court's finding that Hernandez s u ffe r e d serious bodily injury is "plausible in light of the record as a whole." J im e n e z , 323 F.3d at 323. A F F IR M E D . 12

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