United States v. Perez
661 F.3d 568
11th Cir.2011Background
- Defendants Perez, Del Monte, Davila, and Fernandez were convicted of two Hobbs Act conspiracies (Counts 1 and 5) and related offenses (Counts 6-8) arising from planned robberies in Ft. Pierce and a fictitious cocaine stash house in Miami.
- A CI and Onel Salgado coordinated with the defendants; Salgado drove the getaway vehicle for the Ft. Pierce plan and later discussed the stash house robbery with Perez and Del Monte.
- Police intercepted calls and the conspirators prepared to assault the store owner, seize cash, and use firearms transported separately; firearms and masks were found with the group as the plot progressed.
- For Count 7 (firearm in relation to a drug offense) and Count 8 (felon in possession), the government argued constructive possession through coordination in a joint criminal venture and participation in the conspiracy.
- Perez, Del Monte, and others moved for acquittal or new trials; Perez also challenged his sentences for Counts 1, 5, 6, and 7.
- Perez’s Rule 32 allocution rights were at issue, and Del Monte challenged the sufficiency of the evidence for Counts 7 and 8 and the sentencing decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive possession of firearms | Del Monte constructively possessed guns via joint enterprise. | Del Monte had mere presence/no knowledge of the firearms. | Del Monte constructively possessed the firearms. |
| Rule 32 allocution violation | Perez waived allocution; error was harmless. | Perez was denied personal allocution; mandatory and prejudicial. | Rule 32 allocution violated; reversible plain error; sentences vacated and remanded for allocution. |
| Wiretap necessity under § 2518 | Necessity was shown; wiretap warranted. | Necessity not shown; less intrusive methods sufficient. | District court did not err in denying suppression; necessity satisfied. |
| Fifth Amendment/deposition of Rojas | Court properly denied compulsion; Fifth Amendment fears supported denial. | denial violated compulsory process; compelled testimony. | Court did not abuse discretion; no reversible error. |
| Sufficiency of evidence for Counts 7 and 8 (firearm offenses) | Constructive possession shown via participation and weapons in planned crime. | Lacked evidence of knowledge/intent to possess firearms. | Evidence sufficient to sustain Counts 7 and 8. |
Key Cases Cited
- United States v. Woodard, 531 F.3d 1352 (11th Cir. 2008) (defining elements of § 924(c) offense)
- United States v. Gunn, 369 F.3d 1229 (11th Cir. 2004) (constructive possession by participation in crime)
- United States v. Beckles, 565 F.3d 832 (11th Cir. 2009) (possession and dominion/control in constructive possession analysis)
- United States v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010) (necessity of wiretaps and mixed questions of law and fact)
- United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002) (allocution requirements and the practical effect on sentencing)
- United States v. Carruth, 528 F.3d 845 (11th Cir. 2008) (plain error framework for sentencing allocution)
- Green v. United States, 365 U.S. 301 (1961) (right to allocution and individualized sentencing)