plausible to infer “extreme pain”, i.e., serious bodily injury, where victim had “broken rib, bruised buttocks, and cuts behind the ears”
How later courts described this case
- plausible to infer “extreme pain”, i.e., serious bodily injury, where victim had “broken rib, bruised buttocks, and cuts behind the ears”
- affirming district court’s factual finding that defendant suffered serious bodily injury
- “If the evidence was sufficient to support one theory, the fact that the evidence was insufficient to support another of the theories does not negate the verdict.”
Written by the judges who cited it.
The opinion
Case: 07-40747 Document: 00511305705 Page: 1 Date Filed: 11/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2010
No. 07-40747 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE A GARZA-ROBLES, also known as Jose Alberto Garza-Robles, also
known as Betio, also known as Beto;
HECTOR HERRERA-SIFUENTES, also known as Checo
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Tw o codefendants appeal from their convictions for kidnapping and
conspiracy to kidnap. Both argue the evidence is insufficient to sustain their
convictions, while one claims an error in sentencing. We AFFIRM.
FACTS
Ramone Santiago Hernandez, Jr. was a drug trafficker living in Laredo,
Texas. In June 2006, Hernandez was in the border city of Miguel Aleman,
Mexico, which is joined with Roma, Texas by a bridge over the Rio Grande. He
was attempting to set up a drug transaction. While there, Hernandez met one
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No. 07-40747
of the defendants, Jose Garza-Robles. The latter introduced Hernandez to
Eulalio Suarez-Sifuentes, who was known as “Lalo.” Hernandez was aware that
Lalo and Garza-Robles were members of a drug cartel known as the Gulf Cartel,
and that Lalo was a high-ranking member.
Lalo and Hernandez developed a professional relationship – in a criminal
sense. Eventually, Lalo asked Hernandez to obtain new customers in the United
States for his marijuana. Hernandez arranged for the sale of about 650 pounds
of marijuana to Samuel Gonzalez in Houston, Texas. Hernandez was to be a
middleman in the transaction, delivering Lalo’s drugs to Gonzalez and
Gonzalez’s money to Lalo. Prior to the delivery, Hernandez traveled to Houston
and visited Gonzalez’s house seven or eight times to determine whether
Gonzalez could be trusted. After Hernandez met Gonzalez but before the
marijuana was delivered, Lalo told Garza-Robles to go to Houston so that he
could assist Hernandez with the transaction and protect Lalo’s interest.
The marijuana shipment arrived in Houston in late August 2006.
Hernandez loaded it into a Chevrolet Yukon belonging to Gonzalez’s cousin.
Gonzalez was not home when Garza-Robles and Hernandez arrived at night with
the drugs. They parked the Yukon with its cargo in Gonzalez’s garage, planning
to return the next morning to collect $110,500 owed to Lalo.
The next day, the pair returned to Gonzalez’s house and learned he had
fled with his family, the Yukon, and the marijuana. Garza-Robles and
Hernandez unsuccessfully searched for Gonzalez that day. In the afternoon,
Garza-Robles finally called Lalo and explained what had occurred. When
Hernandez got on the telephone, Lalo told him that he wanted both men to come
to Mexico and explain the situation in person.
Later that night, Lalo called and initially spoke to both men on a speaker
phone. At some point, Lalo told Garza-Robles to turn off the speaker phone, and
the two spoke privately. While on the phone with Lalo, Garza-Robles turned to
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Hernandez and encouraged him to travel to Miguel Aleman, Mexico. Hernandez
stated that he was scared to face Lalo. Garza-Robles said they would be in
trouble and that he also was scared. They left for Mexico the next day. Lalo
called several times while they were driving to ensure they were en route.
Along the way, Hernandez tried to arrange for police to arrest him so he
would not have to face Lalo. Hernandez called the Texas state police from a rest
area when Garza-Robles stopped to take a nap. He told the police officer that
Garza-Robles had a small amount of drugs on him and gave the police the
vehicle description and license plate number. Hernandez’s attempts to be
apprehended before entering Mexico were unsuccessful.
Prior to crossing the border, the two men stopped in Laredo so Hernandez
could take a shower and change his clothes. At that time, Hernandez called his
father who advised him to meet with Lalo to show good faith and to convince him
of what happened. While in Laredo, Hernandez again told Garza-Robles that he
did not want to see Lalo. Garza-Robles responded that they needed to explain
the situation together.
On September 1, the two arrived at Lalo’s estate in Miguel Aleman,
Mexico, which was called Casa Amarilla. Between 10 and 15 heavily-armed men
were present when Hernandez and Garza-Robles arrived. Among them was
Lalo’s cousin, the defendant Hector Herrera-Sifuentes. Lalo arrived a half-hour
later armed with a machine gun and hand grenades. Lalo initially appeared
friendly as Hernandez explained what happened. Lalo then told Hernandez he
would have to pay $110,500 for the lost drugs, and that Hernandez could not
leave until he paid. At Lalo’s signal, the gates to Casa Amarilla shut. Lalo
threatened Hernandez that his family would be killed if he left. He also
instructed the guards to shoot Hernandez if he tried to escape.
During his 16-day detention, Hernandez was under constant guard. He
was threatened and brutalized. The defendants Garza-Robles and Herrera-
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Sifuentes guarded Hernandez at various times during his detention. Both were
present when Hernandez was blindfolded, hit in the face with a gun, kicked in
the ribs, and threatened with death while someone made the sign of a cross on
him with a gun. Because he was blindfolded, Hernandez did not know which
guards were beating him. Among other forms of abuse, he was punched and
kicked, beaten with two-by-fours across his bare buttocks, sliced behind the ear
with razors, wrapped in plastic wrap and beaten, had a gun shoved in his mouth,
and had guns fired very close to his ears.
While detained, Hernandez was permitted to use his cell phone to arrange
payments to Lalo. Hernandez’s father collected $57,500 of Hernandez’s money
but understandably refused to take it to Mexico. On September 2, Lalo sent
Garza-Robles to get the money from Hernandez’s father in Roma, Texas. The
payment was collected without incident. Hernandez also arranged for his
girlfriend in Texas to make another payment on September 16. Lalo sent
another of his operatives, Licensiado, to meet Hernandez’s girlfriend in Roma
and escort her and the money to Miguel Aleman.
At some point between the two payments, Hernandez’s family notified the
FBI that he was being held for ransom in Mexico. Prior to their entering Mexico,
the FBI detained Hernandez’s girlfriend and Licensiado. The FBI had
Licensiado call Lalo to tell him they were detained and that the FBI knew Lalo
was holding Hernandez. After first pretending to be confused, Lalo eventually
permitted Hernandez to walk across the international bridge from Miguel
Aleman to Roma.
Lalo instructed Hernandez to tell the FBI that he had not been kidnapped
and warned Hernandez that Lalo would come after him if he did not return to
Miguel Aleman with the rest of the money. Hernandez agreed to follow Lalo’s
instructions and return with the money. FBI agents met Hernandez halfway
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across the bridge, searched him for weapons, and brought him to Laredo for
debriefing. Hernandez agreed to cooperate with the FBI.
At the FBI’s direction, Hernandez told Lalo over the telephone he would
return to pay the remainder of the debt. Lalo explained that he was in trouble
with his drug cartel superiors. They thought Hernandez had paid Lalo $200,000
for the missing marijuana. His superiors also were upset that Lalo did not seek
permission for the kidnapping. Lalo told Hernandez to return to Miguel Aleman
and 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
Hernandez back to Miguel Aleman. Herrera-Sifuentes and Garza-Robles
traveled to Laredo to pick up Hernandez. As the meeting was about to start, the
FBI moved in and arrested the defendants.
Both defendants were charged with kidnapping and conspiring to kidnap
Hernandez 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
sentences for the kidnapping and conspiracy convictions. Garza-Robles received
an additional 120-month sentence to run concurrently with his life sentence for
the receipt of ransom money conviction. Both filed timely notices of appeal.
DISCUSSION
A. Sufficiency of the Evidence
Garza-Robles and Herrera-Sifuentes challenge the sufficiency of the
evidence supporting their convictions for kidnapping and conspiracy.
Where defendants have preserved a challenge to the sufficiency of the
evidence, 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
Cir. 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
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found 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.
2000).
1. Kidnapping
The elements under this kidnapping statute are: “(1) the transportation
in interstate [or foreign] commerce (2) of an unconsenting person who is (3) held
for ransom or reward or otherwise, (4) such acts being done knowingly and
willfully.” United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001) (citation
omitted); see 18 U.S.C. § 1201(a)(1). There must be proof that the victim was
unlawfully 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
commerce after he was seized or confined involuntarily in some manner. See
United States v. McRary, 665 F.2d 674, 678 (5th Cir. 1982). “[N]on-physical
restraint – for instance, fear or deception – can be sufficient to restrain a person
against [his] will.” United States v. Carrion-Caliz, 944 F.2d 220, 225 (5th Cir.
1991). The Government presented two theories on this question. One was that
Hernandez was inveigled into accompanying Garza-Robles into Mexico. The
other was that Hernandez went to Mexico only out of fear for his own and his
family’s safety. The Government urged both theories in its closing argument:
There were two things going on there. One was [Hernandez’s]
fear. He had to go. Trying to think of any way he could be stopped
from going . . . .
The other thing [that] was operating was Lalo’s, on his face,
the words that he was saying, “Come on over here and we’ll talk
about it, and you tell us what is going on.”
Jurors were given an instruction that Hernandez would have crossed the
international border involuntarily if he was either seized or inveigled. The
general verdict jurors reached did not reveal which theory was accepted. If the
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evidence was sufficient to support one theory, the fact that the evidence was
insufficient 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,
303 F.3d 606, 641 (5th Cir. 2002). We examine each theory.
We 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
the person astray by false representations or promises, or other deceitful
means.” The Government argued that Hernandez was inveigled into
accompanying Garza-Robles to Mexico under the false belief that he simply was
going 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
not reasonably find that Hernandez was oblivious to the risks awaiting him in
Mexico. Though he testified he was unaware he would be detained and
brutalized, meaning he did not know the exact form his troubles might assume,
he knew that he and his family were at significant risk. After Garza-Robles told
Lalo of the lost drugs, Garza-Robles turned to Hernandez and said, “We’re going
to be in trouble, you know.” Hernandez repeatedly told Garza-Robles he was
scared and did not want to go to Miguel Aleman. Hernandez testified that he
knew more or less what to expect by going to Mexico. He hoped, though, that
meeting Lalo in person might give him “a chance,” apparently meaning a chance
to live. He admitted he knew he would be held accountable for the value of the
lost drugs.
Acting FBI Supervisor Arturo Fuentes testified that the Gulf Cartel
frequently committed drug-related kidnappings. Fuentes testified that “if you
lose a drug load, if you are working for the Gulf Cartel, they expect you to pay
that money back. And if you don’t pay it back, your family members or you will
be kidnapped until you pay that money back.” He stated the propensity to
kidnap sets the Gulf Cartel apart from other Mexican drug cartels. Hernandez
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was aware he was working for the Gulf Cartel, and as we have indicated, he
knew 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
insufficient evidence that the deception was successful and that Hernandez
voluntarily journeyed to Mexico. If the evidence had supported that deception
caused Hernandez to cross the border, we would then need to address the impact
of our precedents that conclude this kidnapping offense does not occur by the
“entirely voluntary act of a victim in crossing a state line even though it is
induced by deception.” United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.
1979); see also McRary, 665 F.2d at 677. The Government argues this rule is
limited to situations in which the victim took himself across a state line.
Because of our holding that there was insufficient evidence to support the
inveiglement theory, the legal issues are moot.
Before deciding to defer issues that arise under McInnis and McRary, we
considered that the Supreme Court has distinguished between a general verdict
that might be based on a factually unsupported theory and one possibly based
on a legally inadequate theory. Griffin, 502 U.S. at 59. Because jurors “are well
equipped to analyze the evidence” and reject factually unsupported grounds –
indeed, such is a key role for jurors – a verdict of guilt should be sustained as
presumably not being based on a ground for which there was insufficient proof.
Id. (emphasis omitted). Conversely, jurors would not have reason to consider
whether a theory was legally flawed; consequently, their own good judgment
would not have saved them from an error about the law. Id. We have held,
though, that a general verdict is sustainable when the theory that was factually
unsupported was also legally unavailable. United States v. Wilson, 116 F.3d
1066, 1080 (5th Cir. 1997), rev’d on other grounds, United States v. Brown, 161
F.3d 256, 257 n.1 (5th Cir. 1998) (en banc). We conclude that jurors in the
present case would have rejected the unsupported theory due to insufficient
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evidence, a rejection in no way made more or less likely because of the legal
inadequacy that may also exist.
We now examine the sufficiency of the evidence to support the other
theory. It was not necessary that Hernandez be “physically restrained or
confined,” as non-physical restraint arising from fear is enough to support a
kidnapping conviction. Carrion-Caliz, 944 F.2d at 225. Being restrained against
one’s will is the key. Id. A person’s will can be overcome physically or by mental
inducements such as threats. Chatwin v. United States, 326 U.S. 455, 460
(1946). Hernandez’s being sufficiently frightened to travel to Mexico against his
will supports a jury finding that he was seized or confined. A jury instruction
explained that to kidnap meant to “hold, keep, detain, and confine the person
against that person’s will. Involuntariness or coercion in connection with
detention” were part of the offense.
From the beginning, Hernandez told Garza-Robles he was scared to
accompany him to Mexico. Hernandez insisted that Garza-Robles drive to
Mexico because Hernandez was too nervous to drive. Hernandez testified that
he had no choice but to meet Lalo in person because “if you don’t show your face,
they’re going to come and kill your family. That’s the way they work.” On the
way to Mexico, Hernandez called the Texas state police in an attempt to be
arrested. Hernandez testified he told a police officer that he “was being kind of
forced [to] go[] to Mexico, that [he] didn’t want to go because [he] was scared [he]
was 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
responded, “I was scared.”
Prior to crossing the border, the pair stopped in Laredo, and Hernandez
again told Garza-Robles he did not want to go see Lalo. Garza-Robles insisted
that Hernandez had to explain in person what happened with the lost drugs.
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When Garza-Robles and Hernandez reached the border, Hernandez did
not inform the border patrol agent of his predicament. Hernandez explained,
“You know, I wanted to get out . . . at that time; I mean, I didn’t want to cross to
Miguel Aleman, but I was just scared about everything, that they were going to
come and get my family.”
Rational jurors could conclude that Hernandez’s travel to Mexico was not
voluntary. They could reasonably find that Hernandez, seized by fear of what
could happen to him and his family, traveled to Mexico against his will.
Accordingly, the evidence was sufficient to support Garza-Robles’ and Herrera-
Sifuentes’ convictions for kidnapping.
2. Conspiracy to Kidnap
Garza-Robles challenges his conviction for conspiracy to commit
kidnapping. He contends that even if there were a conspiracy to kidnap
Hernandez, there is no evidence he was aware of it when he transported
Hernandez in foreign commerce.
To prove conspiracy to commit kidnapping, the Government must
establish: (1) the existence of an agreement between two or more people to
pursue 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. §
1201(c). “Direct evidence of a conspiracy is unnecessary; each element may be
inferred from circumstantial evidence.” United States v. Mitchell, 484 F.3d 762,
768-69 (5th Cir. 2007) (citation omitted).
The record contains sufficient evidence from which the jury could infer
Garza-Robles was aware of and acted in accordance with a plan to kidnap
Hernandez. We highlight some of that evidence, though we have also discussed
it earlier. Lalo wanted Garza-Robles to go to Houston and assist Hernandez
with the drug transaction and protect Lalo’s interest. After the drug load was
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lost, Garza-Robles telephoned Lalo and informed him of what happened.
According to Hernandez, Lalo spoke with Garza-Robles privately for an extended
period of time. Garza-Robles then handed the telephone to Hernandez. Lalo
told Hernandez that he and Garza-Robles needed to come to Miguel Aleman and
explain the situation in person. Lalo called back later that evening. Garza-
Robles initially had Lalo on speaker phone, but Lalo requested he turn off the
speaker phone. During the private conversation, Garza-Robles turned to
Hernandez and said, “You know what, let’s go. Let’s go.”
Lalo repeatedly called Garza-Robles as the pair traveled to Mexico. When
Hernandez expressed his concern of facing Lalo, Garza-Robles insisted he had
to go with him to Mexico. After arriving at Casa Amarilla, Lalo informed
Hernandez he would be confined there until he paid for the lost load. Hernandez
testified that Garza-Robles was one of the guards who watched him and was
present during many of his beatings. Garza-Robles also went to Texas to pick
up ransom money from Hernandez’s father. In addition, FBI Supervisor Fuentes
testified to the Gulf Cartel’s propensity to commit kidnappings. Garza-Robles
did not dispute he was a member of the Gulf Cartel.
Herrera-Sifuentes has not briefed a challenge to his conspiracy conviction
on appeal. We simply note that because Herrera-Sifuentes admitted that he
guarded Hernandez at Casa Amarilla, there is sufficient evidence he entered the
kidnapping conspiracy at least by the time Hernandez was in Mexico. Joining
a conspiracy after a victim has been transported in foreign commerce creates
criminal responsibility for the prior acts. See United States v. Barksdale-
Contreras, 972 F.2d 111, 114 (5th Cir. 1992).
There is sufficient evidence from which a rational jury could conclude that
Garza-Robles and Herrera-Sifuentes knew of the conspiracy and were acting in
furtherance of that conspiracy when Garza-Robles transported Hernandez in
foreign commerce and when they both guarded Hernandez in Mexico.
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B. Sentence Enhancement
Garza-Robles argues that the district court erred in imposing a two-level
enhancement for inflicting serious bodily injury upon Hernandez. Garza-Robles
claims that although Hernandez was treated inhumanely and in a manner that
shocks 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
error. United States v. Jimenez, 323 F.3d 320, 322 (5th Cir. 2003). “A factual
finding 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
Guidelines Manual § 2A4.1(b)(2)(B). The Guidelines define “serious bodily
injury” as “injury involving extreme physical pain or the protracted impairment
of a function of a bodily member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.
Sentencing Guidelines Manual § 1B1.1 app. n.1(L). Even if the defendant did
not inflict the serious bodily injury, he can still be assessed the enhancement as
long as he knew such injuries were being inflicted. See United States v. Davis,
19 F.3d 166, 171 (5th Cir. 1994).
The presentence report indicates that Hernandez had been assaulted
repeatedly resulting in a broken rib, bruised buttocks, and cuts behind the ears.
It was plausible for the district court to conclude these injuries involved
“extreme pain” and therefore qualified as serious bodily injuries.
Based on these injuries, the district court’s finding that Hernandez
suffered serious bodily injury is “plausible in light of the record as a whole.”
Jimenez, 323 F.3d at 323.
AFFIRMED.
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