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Defendants’ conviction for possessing guns in connection with a robbery attempt upheld though new sentencing ordered for one defendant who did not allocute

In U.S. v. Perez, the defendants were charged with a Hobbs Act conspiracy for planning to rob a fictitious cocaine stash house in Miami. The Hobbs Act makes it a federal crime to conspire to commit a robbery that has some affect on interstate commerce. They were also charged with carrying a firearm in connection with the attempted robbery, and defendant Del Monte was charged with possession of a firearm by a convicted felon. In this case, the Informant (CI) tried to convince the defendants to rob a fictional cocaine stash house by explaining how they could pull it off with the cooperation of a disloyal drug courier who would pass on information about the location of the drug stash house so the co-conspirators could steal the drugs. He told the coconspirators that the stash house was guarded by armed guards. They discussed obtaining five guns including a machine gun. They decided to transport the weapons in a separate vehicle. The weapons were placed in a car driven by the CI while the coconspirators followed. When law enforcement stopped the cars, they found the guns in the CI’s car and stocking hats, pepper spray, and knives were found in the car driven by the defendants.

Defendants argued there is no evidence they had constructive possession of the firearms transported by the CI. The appellate court disagreed finding the evidence supports a reasonable conclusion that defendants:
1. had knowledge of the guns being transported to the robbery site in the other car, and
2. had intent that those guns be used by the coconspirators in the robbery of the fictional stash house.
The evidence shows the defendants were aware of the dangerous nature of the operations, i.e. robbing armed guards of 30 kilograms of cocaine and other undercover discussions by the coconspirators.

The appellate court found the evidence was sufficient to prove Del Monte constructively possessed the guns. The evidence required a showing Del Monte had the intention to later exercise dominion and control over the guns, whether personally or through others. In Del Montes’ car were found the stocking hats, which implicated him in the armed robbery, together with the intent of the coconspirators to use guns to overcome the guards in order to carry out the robbery.

Defense witness had the right to remain silent
The codefendants subpoenaed Rojas to a pretrial deposition but Rojas exercised his right to remain silent. The defendant asked the court to compel Rojas to answer questions by defendants counsel. The district court denied the request. The defendant argued the district court should have held a hearing to determine if Rojas had reasonable cause to refuse to answer counsel’s questions. The court found no abuse of discretion
for the district court to find that Rojas could plausibly fear his answers could lead to a perjury charge by the government.

Warrant for electronic surveillence was proper
The defendant moved to suppress all evidence obtained through court ordered electronic surveillance of calls to and from cell phones. The defendants argued that because the government had success in obtaining evidence prior to receiving permission to intercept electronically, the necessity requirement was not met. Even if the government possessed sufficient evidence to prosecute defendant prior to the wire tap, it only had limited knowledge of the full extent of his criminal activities and of the coconspirators activities.

Failure to address the defendant was error and new sentencing ordered
The sentencing allocution for one defendant was error because the district court did not address the defendant directly. The court directed its question about the defendant allocating to the attorney and not the defendant directly. The Court never got a response from the defendant, and the case was remanded for resentencing. The court found the defendant’s substantial rights were affected because there was a chance of a lower sentence under the sentencing guidelines.

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