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September 29, 1997

ALBERTO M. CAPATI (1), OSCAR R. REDONDO (2), Defendants.

The opinion of the court was delivered by: RHOADES

 I. Overview

 Defendants Alberto Capati and Oscar Redondo move the Court for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Alternatively, they seek a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons set forth below, the Court denies the motions for a judgment of acquittal, and grants the motions for a new trial.

 II. Background

 On September 27, 1996, a jury convicted Alberto Capati of conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); three counts of interference with commerce by robbery, in violation of the Hobbs Act (Counts Two, Four and Five); and two counts of using or carrying a firearm during or in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Three and Six). The jury convicted Oscar Redondo on Counts One, Four, Five and Six only. The convictions were a result of Defendants' involvement in a series of jewelry store robberies. The evidence at trial was as follows:

 A. The Initial Arrangement

 In 1989, Jeffrey Diaz, the Government's key witness, first met defendant Capati when Diaz enlisted in the army. Capati spent the latter part of his lengthy career in the army as a recruiter. In September of 1991, Diaz attempted to reenlist in the army. In late November or early December of 1991, during a meeting between Diaz and Capati at the army recruiting station in National City, the conversation turned to the subject of jewelry.

 According to Capati's testimony, Diaz first approached the subject of jewelry by asking Capati whether he might like to purchase some items from Diaz's uncle who was closing a jewelry business in Los Angeles. Diaz showed Capati a brochure depicting the items that were available from Diaz's uncle. Eventually, Capati agreed to buy certain pieces of jewelry from the brochure and gave Diaz $ 2,000. (Tr. at 1575-78.)

 Diaz painted a very different picture of the meetings. According to Diaz, he came to the recruiting station wearing a gold necklace and ring. Capati noticed the jewelry and asked Diaz whether similar items could be obtained. It was discussed that the jewelry would have to be "taken" and eventually agreed upon that the method for doing so would be a "snatch-and-grab" *fn1" (Tr. at 116-21.) Capati provided Diaz with a list of the items of jewelry desired and the two of them agreed on a price of $ 3,500 for Diaz to obtain the items through a series of grab-and-runs. (Tr. at 120-22).

 B. The Grab-And-Runs

 From the end of 1991 through January 1992, Diaz testified that he and the men he had assembled committed a series of grab-and-run thefts in order to obtain the jewelry for which Capati had paid. (Tr. at 160-80.) The first grab-and-run took place a few days after Christmas 1991. (Tr. at 165.) Diaz hired Allen Denson and Ernie Castro to commit the theft. With the assistance of Diaz, Denson and Castro stole two diamond rings from Diamond Designs in La Mesa, California. The following day, Diaz delivered the two rings to Capati and Redondo at the house of one of Redondo's relatives. (Tr. at 169-70). At this meeting, Redondo first became involved in negotiations with Diaz. The negotiations centered on Diaz obtaining the same type of jewelry for Redondo that Diaz was obtaining for Capati. (Tr. at 171.) Diaz ultimately gave one of the rings from the theft to Capati and one to Redondo. The ring given to Capati was applied against the advance payment that Capati had given to Diaz.

 The third grab-and-run was committed by Denson in mid-January to late January 1992 at Don Roberto Jewelry in Plaza Bonita. (Tr. at 176-79). Diaz testified that immediately after the grab-and-run, he delivered the diamond tennis bracelet taken during the theft to Capati and Redondo at the recruiting station in National City. (Tr. at 177-78.) At this meeting, Redondo again expressed his interest in obtaining similar jewelry and also expressed an interest in obtaining Rolex watches.

 The last of the grab-and-runs, which also took place in January 1992, was committed by Denson and another individual at a Jessop's jewelry store. Diaz testified that he sold the one Diamond ring taken in the theft to Sergeant Ramos, another army recruiter.

 C. The Switch From Thefts To Robberies

 Although the grab-and-runs and the negotiations between Diaz and Defendants described thus far were certainly relevant to the proceedings, it is undisputed that the grab-and-runs did not constitute Hobbs Act robberies. The grab-and-runs were not alleged in the superseding indictment and the jury was instructed that the grab-and-runs did not constitute robberies under the law. Diaz testified, however, that after the last of the grab-and-runs an agreement was made with Defendants that Diaz would begin committing actual robberies, rather than grab-and-runs. This meeting was a crucial, and much disputed, turning point in the operation.

 Diaz testified that after the last of the grab-and-runs he met with Capati and Redondo at the recruiting station in National City. (Tr. at 129, 184.) On direct examination, Diaz testified that the meeting took place in January 1992, or, more specifically, in mid-January 1992 around the same time as the Jessop's grab-and-run. (Tr. at 126, 181.) On cross-examination, Diaz testified that the Jessop's grab-and-run took place on January 16, 1992, and that the meeting took place a short time thereafter. (Tr. at 325, 333-34.) When pressed, Diaz testified that the meeting took place within two or three days after the January 16 Jessop's grab-and-run and that the meeting was no later than January 19, 1992. (Tr. at 334-35.)

 Diaz testified that the primary topic of the meeting was Defendants' concern regarding the pace at which Diaz was obtaining jewelry. (Tr. at 126-27, 182-83.) The result of the meeting, according to Diaz, was an agreement that harsher methods, including the use of force and the hiring of a gang, would be employed, thus transforming the grab-and-runs into "full-blown" robberies. (Tr. at 127-31, 183-85.) On the first day of his testimony, Diaz testified that the use of a weapon was not specifically discussed during the meeting. (Tr. at 130.) On his second day of testimony, however, Diaz testified that the use of a gun was indeed discussed. (Tr. at 183.) In any event, Diaz testified that there was no misunderstanding of the methods that were to be used and that Defendants, while not wishing to know the details of the robberies, told Diaz in effect to "do what you have to do." (Tr. at 130-31, 183-85.).

 Capati testified that the pivotal meeting with Diaz never occurred. In fact, Capati testified that the meeting could not have occurred because he and his family were visiting the Grand Canyon at all times during the period in which Diaz testified that the meeting could have occurred. Capati testified that he left San Diego for the Grand Canyon on January 17, 1992. (Tr. at 1583-84.) He remained at the Grand Canyon until at least the 19th or 20th when the family headed to Lake Havasu before returning to San Diego. (Tr. at 1584-85.)

 Capati produced highly persuasive proof of his trip to the Grand Canyon and Lake Havasu. Capati testified that he experienced car trouble during the Grand Canyon trip and that, as a result, he had his tires replaced at a gas station. Capati produced a receipt evidencing this. (Def's Ex. JJ.) The trip to Arizona was further corroborated by family photographs and other receipts, as well as military leave records and the testimony of two of Capati's children. (Def's Ex. PP-1 through PP-6; RR-1 through RR-4.)

 D. The Robberies

 The first of the armed robberies occurred at Diamond Designs in Mission Valley during the first week of February 1992. (Tr. at 188.) Prior to the robbery, Diaz had acquired a gun and instructed Denson what to do with it. (Tr. at 187.) Denson committed the robbery with another individual and took approximately 40 diamond rings. According to Diaz, Capati and Redondo took almost all of the rings stolen during the robbery.

 In mid-February 1992, a robbery was committed at Diamond Designs in La Mesa. (Tr. at 193.) Diaz cased the jewelry store and hired Joe Perez to commit the robbery. Jason Diaz drove the getaway care According to Diaz, both Capati and Redondo purchased some of the jewelry stolen in the robbery for 10% of the ticketed price.

 The third robbery occurred during the first week of March 1992 at Weisfield Jewelers in Fashion Valley. (Tr. at 204.) Again, Diaz cased the store and then told Denson and Perez "to hit the place." (Tr. at 205.) Diaz testified that Capati and Redondo took some of the approximately 40 to 50 rings stolen during the robbery.

 The next robbery occurred in late March 1992 at a Ben Bridge jewelry store in Mission Valley. (Tr. at 210.) After casing the store, Diaz arranged for Perez to come to San Diego to commit the robbery. Perez committed the robbery with Miguel Ortiz who was hired by Diaz as the operation grew. According to Diaz, Capati paid $ 10,000 and Redondo paid $ 4,000 for some of the loose diamonds, diamond rings and Rolex watches taken in the robbery.

 During the second week of April 1992, the Sundance jewelry store in La Mesa was robbed. (Tr. at 232.) During the robbery, which was committed by Perez and Ortiz with Jason Diaz driving the getaway car, approximately seven diamond rings were taken.

 Also in April 1992, the Weisfield store in Chula Vista was robbed. (Tr. at 243.) Diaz cased the store and acted as a lookout during the robbery. The robbery was committed by Perez, Ortiz and Ismael Meraz. Diaz testified that Capati purchased some of the diamond rings and a gold necklace that had been taken during the robbery and that Redondo also purchased some of the rings.

 The final robberies occurred on April 30, 1992 at the Ben Bridge jewelers and Murata Pearl store in Mission Valley. (Tr. at 253.) Along with Perez, Diaz planned the robberies to be simultaneous. Rolex watches and diamond rings were taken during the robberies. The watches, according to Diaz, were delivered to Capati and Redondo. Diaz and Perez were arrested that evening.

 E. Other Participants' Testimony

 Joe Perez testified regarding the details of the robberies. Perez also testified that he and Diaz had delivered the stolen jewelry to Capati and Redondo after some of the robberies. Perez admitted, however, that he never witnessed any conversations regarding the robberies involving Capati and that during the only conversation he heard involving Redondo, Redondo merely asked generally what Perez was doing what sort of things Perez was going to obtain. (Tr. at 594, 596.)

 Miguel Ortiz similarly testified regarding the details of his participation in the robberies. His testimony, however, sheds no light at all on either Capati's or Redondo's involvement. Indeed, neither Defendant's name was even mentioned during Ortiz's testimony. Ortiz testified that he delivered the stolen jewelry to Diaz, was paid by Diaz, and never saw the jewelry after it was given to Diaz. (Tr. at 700.)

 Ismael Meraz, much like Ortiz, testified to some details of the robberies, but provided no information concerning Defendants' involvement. It is unclear from Meraz's testimony whether he even knew who Defendants were, let alone their involvement if any.

 Allen Denson's testimony did not fit well with the Government's theory that Capati and Redondo were the "masterminds", or at least instigators, of the thefts and robberies. Denson testified that Diaz brought up the idea of committing robberies in May 1991, long before the alleged year-end meeting between Diaz and Capati. (Tr. at 835.) According to Denson, it was Diaz who planned the robberies, provided the weapon, took the jewelry, and promised to pay Denson. (Tr. at 862.) Contrary to Diaz's testimony that he had agreed with Capati to commit grab-and-runs, Denson testified that it was Diaz's plan to commit armed robberies from the beginning, but that Denson refused. (Tr. at 840.) Denson testified that he visited the recruiting station on many occasions and that Diaz met with Capati, but Denson had no knowledge of the conversations. Although Denson testified that he once received a call from Capati while Denson was driving Diaz's car, and that Capati wished to relay a message to Diaz that he would have some money, Denson admitted that he did not know what Diaz was doing with the jewelry. (Tr. at 862, 865-66, 870.) Throughout the duration of the robberies, Denson never recalled hearing Redondo's name. (Tr. at 863.)

 Jason Diaz, in addition to relating his role as a driver in some of the robberies, testified that Jeffrey Diaz met with Capati, Redondo, and several other army recruiters. He testified that at these meetings, and at a dinner at the Capati house, the subject of jewelry was discussed. As his testimony was developed, it became clear that Jason had little or no direct involvement in any of the conversations and that much of his testimony was hearsay based upon what Jeffrey Diaz had allegedly told him. Eventually, the Court sustained an objection and motion to strike any of Jason's testimony that had been related by Jeffrey Diaz and as to Jason's testimony regarding the alleged meetings at the recruiting station. (Tr. at 1025, 1265-66.)

 F. Miscellaneous Evidence

 F.B.I. agent Gerald Brown testified that during a consent search of the Capati residence he seized one tennis bracelet, eleven rings and a tag to one Rolex watch. Robert Silverman, who was employed by Diamond Designs, testified that one of the rings recovered in the search of the Capati residence was from the robbery of a Diamond Designs store. Robert Ferrell, who is employed by the parent company of Weisfield Jewelers, testified that three of the rings from the search of the Capati residence came from the Weisfield robberies. Doug Newton, who is employed by Ben Bridge Jewelers, identified five rings and two Rolex watches as being those taken during the Ben Bridge robberies. F.B.I. agent Michael Wieners testified that the fingerprints on one of the Rolex watches were those of Redondo.

 Angel Reyes, the Government's cooperating witness, testified regarding his discussions with Capati and Redondo in the latter part of 1992, after Diaz had been arrested and the robberies had ceased. Reyes testified that he purchased the two Rolex watches described above from Redondo, that Reyes was told that Capati might have some loose diamonds for sale and that, if Reyes had known Capati and Redondo earlier, there would have been more jewelry available.

 III. Discussion

 The Court will discuss first, Defendants' motions for a judgment of acquittal, and second, Defendants' motions for a new trial.

 A. Defendants' Motions For A Judgment Of Acquittal

 1. The Hobbs Act's Jurisdictional Requirement

 Relying on United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), Defendants argue that the Government was required to prove beyond a reasonable doubt that the robberies "substantially affected" interstate commerce and that proof of a de minimis effect cannot support a Hobbs Act conviction. While the Court previously has expressed some doubt about the Ninth Circuit's resolution of this issue, *fn2" it has now become clear that Defendants' argument is foreclosed by the Ninth Circuit's decisions in United States v. Woodruff, 122 F.3d 1185, 1997 WL 438481 (9th Cir. 1997), and United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996), cert. denied, 137 L. Ed. 2d 229, 117 S. Ct. 1096 (1997).

 2. Vicarious Liability Under § 924(c)

 It is undisputed that neither Defendant physically used or carried a firearm during the robberies. The jury was instructed, however, that Defendants could be found guilty of the § 924(c) charges based upon a co-conspirator's use and carrying of a firearm under Pinkerton v. United States, 328 U.S. 640, 647-48, 90 L. Ed. 1489, 66 S. Ct. 1180 (1947). Relying on Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), Defendants contend that Pinkerton is inapplicable in the § 924(c) context because the statute applies only where the defendant, rather than a co-conspirator, used or carried the firearm. Defendants' contention is foreclosed by the Ninth Circuit's decision in United States v. Fonseca-Caro, 114 F.3d 906 (9th Cir. 1997).

 Nevertheless, Defendants argue that their relationship to the robberies and the use and carrying of a firearm was so "attenuated" that application of Pinkerton to the facts of this case results in a due process violation. Defendants' sole authority for this contention is United States v. Castaneda, 9 F.3d 761 (9th Cir. 1993).

 In Castaneda, the Ninth Circuit reversed six of seven firearm convictions of one of the defendants. In so doing, the court held that "due process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight." Id. at 766. The holding of Castaneda was narrow. The court recognized that "no circuit has yet found the relationship between a defendant and another conspirator's use of a firearm so remote that due process required reversing a § 924(c) conviction." Id. Despite this absence of precedent, however, the court could not overlook the fact that out of 360 phone calls involving the defendant, only one evidenced any knowledge of the conspiracy. Moreover, after summarizing all of the government's evidence, the court acknowledged that "the only evidence that connects [the defendant] to the predicate offenses appears to be her marriage to [a codefendant]." Id. at 768.

 Here, viewing the evidence in the light most favorable to the Government, as the Court must when faced with a Rule 29 motion, the Government presented evidence of Defendants' involvement in the robberies sufficient to allay any due process concerns. Through the testimony of Jeffrey Diaz, the Government presented evidence that Defendants participated in an agreement whereby Diaz would steal specific items of jewelry for Defendants' benefit and would be paid by Defendants based upon the amount of jewelry stolen. Initially, the agreement was to commit only grab-and-run thefts. (Tr. at 121, 125-26.) Eventually, however, Diaz and Defendants agreed that robberies would have to be committed in order to speed up the pace of the operation. (Tr. at 127-31, 183-5.) Whether or not Defendants explicitly agreed that a firearm would be used during the robberies, Diaz's testimony establishes that it was certainly foreseeable that a gun would be used. From this evidence, the jury could reasonably ...

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