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United States v. Betancourt

United States District Court, D. Connecticut

June 28, 2019

UNITED STATES
v.
FRANCISCO BETANCOURT, CARLOS ANTONIO HERNANDEZ, and LUCILO CABRERA

          RULING ON MOTIONS FOR JUDGMENT OF ACQUITTAL AND/OR FOR A NEW TRIAL (DOC. NOS. 234, 235, 242, 257)

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         Francisco Betancourt, Carlos Hernandez, and Lucilo Cabrera were charged via a third superseding indictment with kidnapping, conspiracy to commit kidnapping, extortion, and conspiracy to commit extortion.[1] See Third Super. Indict., Doc. No. 115. After a nine-day trial, the jury returned its verdict on March 9, 2018. See Verdict, Doc. No. 225. Betancourt, Hernandez, and Cabrera were each found guilty of one count of conspiracy to commit kidnapping (Count One) and one count of conspiracy to commit extortion (Count Two). Id. In addition, Betancourt was convicted of three counts of kidnapping (Counts Three, Four, and Five), and three counts of extortion (Counts Six, Nine, and Eleven).[2] Id. Hernandez was convicted of three counts of kidnapping (Counts Three, Four, and Five), and two counts of extortion (Counts Six and Nine).[3] Cabrera was convicted of two counts of kidnapping (Counts Fifteen and Sixteen) and three counts of extortion (Counts Eleven, Fourteen, and Seventeen).[4]Id.

         Betancourt, Cabrera, and Hernandez all filed Motions for Judgment of Acquittal and/or New Trial on March 16, 2018, March 19, 2018, and March 21, 2018, respectively. Betancourt Mot. for J. Acquittal and/or New Trial (“Betancourt Mot.”), Doc. No. 234; Cabrera Mot. for J. Acquittal and/or New Trial (“Cabrera Mot.”), Doc. No. 235; Hernandez Mot. for J. Acquittal and/or New Trial (“Hernandez Mot.”), Doc. No. 242. Thereafter, the defendants each filed memoranda of law in support of their motions. Cabrera Mem. in Supp. Mot. for J. Acquittal and/or New Trial (“Cabrera Mem. in Supp.”), Doc. No. 256; Betancourt Mem. in Supp. Mot. for J. Acquittal and/or New Trial (“Betancourt Mem. in Supp.”), Doc. No. 257; Hernandez Mem. in Supp. Mot. for J. Acquittal and/or New Trial (“Hernandez Mem. in Supp.”), Doc. No. 258. The government filed its opposition on September 21, 2018, Gov't Opp., Doc. No. 273; and Cabrera thereafter filed a reply. Cabrera Reply, Doc. No. 285.

         In their motions, the defendants argue that they are entitled to judgments of acquittal because the government: (1) failed to establish the “taking” element of kidnapping; (2) failed to establish the “holding” element of kidnapping; and (3) failed to establish the “fear” element of extortion. Each of the three defendants also argue that, in the alternative, they are entitled to a new trial because I erroneously failed to give requested charges regarding lesser-included offenses and/or their theory of the case in the jury instructions.

         For the following reasons, the defendants' Motions for Judgment of Acquittal and/or New Trial are denied.

         I. Background

         The following general factual allegations were alleged by the government and introduced at trial. More specific factual allegations for each count will be described in more detail below. In general, the government alleged that the defendants' kidnapping and extortion plan stemmed from their scheme to trick people into accompanying them in a purported taxi, driving the person from New York to Connecticut, and demanding payment from the person's family members. The plan was executed by one or more of the defendants waiting at Port Authority in New York City and identifying people who had traveled from Central or South America, entered the United States illegally, and were detained at the border before being sent to their family members in Connecticut by bus.[5]

         One or more of the defendants would then approach the person, take their bus tickets, and misinform them that they had missed their bus to Connecticut and/or had arrived in the wrong place. The defendant(s) then offered to get the person to Connecticut via taxi, and called the person's relative to tell them their lost relative was coming via taxi, not bus. One or more of the defendants would then purport to be a taxi driver and would drive the person to Connecticut.[6]Upon arrival, the defendant(s) would demand payment from the family members, who are the alleged extortion victims. The extortion victims paid the “taxi fare”, which was usually around $1, 000 for the trip.

         The defendants argued, generally, that although they took advantage of the victims, they did not kidnap or extort them. Further, the defendants called into question the victims' motivation in testifying against the defendants because many of them were in the process of applying for a U-Visa, a visa for victims of violent crimes, in order to stay in the country. The jury convicted each defendant of at least one kidnapping and one extortion charge as well as the two conspiracy charges.

         II. Motions for Judgment of Acquittal

          A. Standard Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, “the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29. “A defendant seeking to overturn a conviction on the ground that the evidence was insufficient bears a heavy burden.” United States v. Best, 219 F.3d 192, 200 (2d Cir. 2000), cert. denied, 121 S.Ct. 1733 (2001). The reviewing court must view the evidence in the light most favorable to the prosecution and must reject the sufficiency challenge if it concludes that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998) (“[t]he ultimate question is not whether [the court believes] the evidence adduced at trial established defendant's guilt beyond a reasonable doubt, but whether any rational trier of fact could so find” (emphasis in original)). A reviewing court must consider the evidence as a whole, not in isolation. Best, 219 F.3d at 200; see also United States v. Memoli, 2015 WL 1525864, at *2 (D. Conn. Apr. 2, 2015) (“In order to prevail on a Rule 29 Motion, Defendant must establish that the totality of the evidence is insufficient to convict him-it is irrelevant that one piece of evidence, standing alone, would not have been enough.” (Emphasis in original).). The “pieces of evidence must be viewed ‘not in isolation, but in conjunction.'” Memoli, 2015 WL 1525864, at *2 (quoting United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir. 1989)).

         Further, the court must defer to the jury's determination of the weight of the evidence, credibility of witnesses, and competing inferences that can be drawn from the evidence. Best, 219 F.3d at 200. The district court must “assum[e] that the jury resolved all questions of witness credibility and competing inferences in favor of the prosecution.” United States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010) (internal citations omitted); see also United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998) (“We defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of competing inferences that can be drawn from the evidence.”). The jury is “exclusively responsible” for determinations of witness credibility; United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); and the court must be “careful to avoid usurping the role of the jury since Rule 29 does not provide the trial court with an opportunity to substitute its determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” United States v. Cassese, 428 F.3d 92, 98 (2d Cir. 2005) (internal quotation marks omitted). The court should defer to the jury's credibility assessments and intrude upon that function only where “exceptional circumstances can be demonstrated” such as when “testimony is patently incredible or defies physical realities.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).

         B. Discussion

         In their motions, the defendants argue that they are entitled to judgments of acquittal on all counts because the government: (1) failed to establish the “taking” element of kidnapping; (2) failed to establish the “holding” element of kidnapping; and (3) failed to establish the “fear” element of extortion.

         1. Substantive Crimes

         a. Legal Principles

         i. Kidnapping

         Each of the defendants was found guilty of conspiracy to commit kidnapping (Count One), and multiple counts of substantive kidnapping: Betancourt and Hernandez were each found guilty of three counts (Counts Three, Four, and Five); and Cabrera was found guilty of two counts (Counts Fifteen and Sixteen). See Verdict, Doc. No. 225.

         The defendants were charged and convicted pursuant to 18 U.S.C. § 1201(a)(1), which provides, in relevant part, that a person commits kidnapping when he:

[U]nlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when … the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense[.]

18 U.S.C. § 1201(a)(1). Accordingly, the government must prove each of the three elements of kidnapping beyond a reasonable doubt: (1) taking; (2) holding; (3) interstate commerce.[7] See United States v. Corbett, 750 F.3d 245, 251 (2d Cir. 2014). “The very nature of the crime of kidnapping requires that the kidnapper use some means of force-actual or threatened, physical or mental-in each elemental stage of the crime, so that the victim is taken, held and transported against his or her will …. [I]t is ‘the involuntariness of seizure and detention which is the very essence of the crime of kidnapping.'” Macklin, 671 F.2d at 64 (quoting Chatwin v. United States, 326 U.S. 455, 464 (1946)). The defendants argue that the government failed to establish the “taking” and “holding” elements of kidnapping and, therefore, they should be acquitted of kidnapping and conspiracy to commit kidnapping.

         The “taking” element means that “the victim [was] unlawfully taken, coerced, or deceived into accompanying the accused[.]” Corbett, 750 F.3d at 251. Here, the government charged the defendants with kidnapping by inveiglement. “Inveiglement” involves a nonphysical taking and means “to entice, lure, or lead astray, by false representations or promises, or by other deceitful means.” United States v. Macklin, 671 F.2d 60, 64 (2d Cir. 1982).

         The “holding” element means that the victim was “held by the accused for ransom, reward or otherwise[.]” Corbett, 750 F.3d at 251. “[T]he act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person's will and with a willful intent so to confine the victim.” Chatwin, 326 U.S. at 460. “Holding” incorporates situations in which the victim is “deprived of [his or] her liberty, compelled to remain where [he or] she did not wish to remain, or compelled to go where [he or] she did not wish to go.” Id. If a victim “was perfectly free to leave the [defendants] when and if [he or] she desired, ” then the government has “failed to prove an act of unlawful restraint” and, accordingly, failed to prove the “holding” element. Id.

         When the taking element is accomplished via nonphysical means (i.e., inveiglement), the courts are split on whether the kidnapping statute “covers a defendant who continues to use trickery to ‘hold' his victim captive, without resorting to physical or psychological coercion.” Corbett, 750 F.3d at 251 (emphasis in original); see also United States v. Higgs, 353 F.3d 281, 313 (4th Cir. 2003) (“holding” requirement satisfied when defendant exhibited the willingness and ability to use force if the inveiglement failed); United States v. Boone, 959 F.2d 1550, 1556 (11th Cir. 1982) (same); but see United States v. Stands, 105 F.3d 1565, 1569 (8th Cir. 1997) (“holding” requirement satisfied when defendant continues to hold the victim by trickery); United States v. Carrion-Caliz, 944 F.2d 220, 225-27 (5th Cir. 1991) (same).[8] The Second Circuit has yet to determine whether the “holding” element of kidnapping is satisfied when a victim is taken and held by trickery, or whether the defendant must have the willingness and ability to use force to hold the victim in the event the trick fails. See Corbett, 750 F.3d at 251-52 (“Focusing, as we do, on the defendant's intent, we need not, and hence do not, decide today whether [section] 1201(a) may be satisfied when a victim is ‘held' only by the victim's continuing belief in his kidnapper's dupe.”).

         The Second Circuit has determined that the holding requirement is met when the government produces sufficient evidence that the defendant intended to lure the victim someplace and further intended to hold the victim against his or her will. Id.; see also Id. at 252 (the evidence permitted “the fact-finder to conclude beyond a reasonable doubt, that [the defendant] intended to [and did] ‘take,' ‘hold,' and ‘transport' [the victim] from New York to Connecticut, against [the victim's] will” (emphasis in original)).

         ii. Hobbs Act Extortion

         The defendants were each found guilty of conspiracy to commit Hobbs Act extortion (Count Two), and each of the defendants was found guilty of multiple counts of substantive Hobbs Act extortion: Betancourt was found guilty of three counts (Counts Six, Nine, and Eleven); Hernandez was found guilty of two counts (Counts Six and Nine); and Cabrera was found guilty of three counts (Counts Eleven, Fourteen, and Seventeen). See Verdict, Doc. No. 225.

         The defendants were charged and convicted pursuant to 18 U.S.C. § 1951(a), the Hobbs Act, which “prohibits … extortion-including conspiracy and attempt-that affects interstate commerce.” United States v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018) (citing 18 U.S.C. § 1951(a)). The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear[.]” 18 U.S.C. § 1951(b)(2). “[T]he Hobbs Act requires ‘that a person must obtain property from another party to commit extortion.'” Kirsch, 903 F.3d at 226 (quoting Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 404 (2003)). “[E]xtortion ‘requires that the victim part with his property, and that the extortionist gain possession of it' …. [Thus, ] ‘property extorted must … be transferable-that is, capable of passing from one person to another.'” Id. (quoting Sekhar v. United States, 570 U.S. 729, 734 (2013)).

         The defendants argue that the government failed to establish the “fear” element of extortion and, therefore, they should be acquitted of Hobbs Act extortion and conspiracy to commit Hobbs Act extortion. In order to establish the fear element, the government must prove “that the defendant knowingly and willfully created or instilled fear, or used or exploited existing fear with the specific purpose of inducing another to part with property.” United States v. Coppola, 671 F.3d 220, 241 (2d Cir. 2012). “[T]he Hobbs Act ‘leaves open the cause of the fear' inducing a party to consent or part with property and does not require that such fear be ‘created by implicit or explicit threats.'” Id. (quoting United States v. Gotti, 459 F.3d 296, 333 (2d Cir. 2006)). The fear requirement may be satisfied by a fear of injury, or a fear of economic harm, whether immediately or in the future. United States v. Fazio, 770 F.3d 160, 166 (2d Cir. 2014).

         “The cases interpreting the Hobbs Act have repeatedly stressed that the element of ‘fear' required by the Act can be satisfied by putting the victim in fear of economic loss.” United States v. Brecht, 540 F.2d 45, 52 (2d Cir. 1976) (en banc), cert. denied, 429 U.S. 1123 (1977) (citations omitted); see also United States v. Capo, 817 F.2d 947, 950 (2d Cir. 1987) (“The government successfully prosecuted [the] defendants under the theory that their activities amounted to extortion by wrongful use of fear-specifically, fear of economic loss.”). “The absence or presence of fear of economic loss must be considered from the perspective of the victim, not the extortionist; the proof need establish that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim's detriment.” Id. (emphasis in original).

         In establishing the element of fear, the use of weapons may bear on the reasonableness of the fear; see United States v. Rodriguez, 68 Fed.Appx. 237, 241 (2d Cir. 2003) (finding that fear of harm was reasonable where victims were previously threatened with baseball bats and where victims saw defendant draw a firearm); however, the “Hobbs Act does not require the brandishing of a weapon … [and] the use of a weapon is not a prerequisite for a finding of force.” United States v. Santos, 449 F.3d 93, 100 (2d Cir. 2006). Indeed, “a direct threat of future harm is not necessary to establish the reasonableness of the alleged victim's fear.” United States v. Covino, 837 F.2d 65, 68 (2d Cir. 1988), superseded on other grounds by United States v. Rybicki, 287 F.3d 257 (2d Cir. 2002). Further, evidence of a victim's cordiality with the extortionist does not preclude a finding that a payment was induced by fear. Coppola, 671 F.3d at 242 (citing United States v. Hedman, 630 F.2d 1184, 1194 (7th Cir. 1980)).

         iii. Aiding and Abetting

         The defendants also were all charged with aiding and abetting each other in committing the various crimes. The aiding and abetting statute, 18 U.S.C. § 2, provides that someone can be found guilty of aiding and abetting a crime and can be punished as a principal if he: “(a) . . . aids or abets or counsels, commands or induces, or procures [an offense's] commission” or “(b) … willfully causes an act to be done which, if directly performed by him, or another would be an offense against the United States.” To prove a defendant guilty under subsection (a), “the government must prove that the underlying crime was committed by a person other than the defendant, that the defendant knew of the crime, and that the defendant acted with the intent to contribute to the success of the underlying crime.” United States v. Huezo, 546 F.3d 174, 179 (2d Cir. 2008) (citations omitted) (internal quotation marks omitted), cert. denied, 558 U.S. 936 (2009). In order to prove the defendant acted with specific intent, “the government need not establish that he knew all of the details of the crime, only that he joined the venture, [that he] shared in it, and that his efforts contributed toward its success.” Id. at 179-80 (internal quotation marks omitted).

         b. Analysis

         i. Counts Three, Four, Five, and Six (Betancourt and Hernandez)

         In Counts Three, Four, Five, and Six, Betancourt and Hernandez were convicted of kidnapping Irma Mata Lopez (“Irma”) (Count Three), her minor son (Count Four), and her minor daughter (Count Five), and were convicted of extorting Irma's sister, Dilcia Mata Lopez (“Dilcia”)[9] (Count Six).

         The following facts, which the jury could have reasonably found from the evidence introduced at trial, are relevant to the counts at issue here. Irma traveled to Texas from her home in Honduras in September 2016 with her six-month-old daughter and six-year-old son. Tr. 2/27/18, Doc. No. 210 at 46-50. She was detained by immigration authorities in Texas where she was given a GPS monitoring bracelet and held for a few days before being released with her children. Id. at 50, 56-57. Irma testified that “at any moment an immigration official might show up because the monitor tells them where [she is.]” Id. at 64-65. Immigration personnel called Dilcia, who was living in Connecticut, and Dilcia purchased bus tickets for Irma and her two children to travel from Texas to Connecticut. Id. at 60-61; Tr. 2/28/18, Doc. No. 211 at 252. When she arrived at Port Authority bus terminal in New York City, Irma was approached by a man, later identified as Betancourt, [10] who took her tickets to Hartford and told her that her bus had already left. Tr. 2/27/18, Doc. No. 210 at 66-67, 71. He also told Irma that he had a taxi and would get her to her sister's house. Id. at 71. Betancourt asked Irma for Dilcia's phone number and called Dilcia, though Irma testified that she was not allowed to speak to Dilcia. Id. at 71-72. Dilcia testified that she received a call from an unknown person who told her he had her sister because she had missed her bus to Hartford and she was very far from the station where she was supposed to arrive. Tr. 2/28/18, Doc. No. 211 at 239. Betancourt told Dilcia that he would take Irma to Connecticut for $3.00 or $3.50 per mile, but Dilcia said it was too much money. Id. Dilcia told Betancourt to pick a spot where they could meet so she could pick up Irma and her children, but Betancourt did not give her a location, and Dilcia testified that she felt she had no choice about having Irma put into a cab and she was fearful for Irma's safety. Id. at 240, 331-33.

         Betancourt then took Irma's son by the hand and walked “ahead of” Irma, who was carrying her daughter, to the subway. Tr. 2/27/18, Doc. No. 210 at 71-72. When they got off the subway, Betancourt again “grabbed the hand of” Irma's son and “walked through some people.” Id. at 75. Irma testified that she could “see him from a distance”, but sometimes could not see him, and was “running … trying to reach him” because he had her son. Id. at 75-76. Irma testified, though, that “at no point” did she think Betancourt had “stolen” her son. Id. at 159. She followed Betancourt to where a man, later identified as Hernandez, [11] was cleaning a car that Betancourt told her was the “taxi that's going to take you to your destination.” Tr. 2/27/18, Doc. No. 210 at 84. Irma testified that she protested because she did not believe it was a taxi because it did not have any taxi markings, but Betancourt assured her it was. Id. Irma, her children, and Betancourt entered the car, Irma and her children in the back and Betancourt in the passenger seat, and Hernandez took Irma's immigration paperwork from her and kept it. Id. at 85-86, 91-92. Hernandez drove for 10-15 minutes before stopping for food, for which Betancourt paid. Id. at 92-93. Betancourt then left the car and Hernandez continued to drive, and he drove past “many places that [Irma] had already passed when [she] was on the bus on [her] way to New York” before stopping at a rest stop. Id. at 93, 96. Hernandez did not let Irma's son use the restroom though, and told him to go to the bathroom in front of the car. Id. at 96. Dilcia called Hernandez and Irma heard him say “three fifty per mile” and then Hernandez allowed Irma to speak to Dilcia very briefly to tell her that she was okay. Id. at 93-95. Dilcia testified that she started driving to Albany, New York because that seemed closer to where Betancourt told her Irma had arrived. Tr. 2/28/18, Doc. No. 211 at 242-43.

         Irma testified that she told Hernandez to “let [her] out anywhere, that [she] would figure out how to call [her] sister.” Tr. 2/27/18, Doc. No. 210 at 98. She testified that she may have told him one other time to let her out of the car. Id. at 108. Hernandez refused to let her out. Id. at 98. Dilcia also testified that she heard Irma ask Hernandez to drop her off anywhere. Tr. 2/28/18, Doc. No. 211 at 244. Hernandez arrived at the designated meeting spot and when Dilcia arrived with her husband Rigoberto Oriana and her friend Marlon Molestina, Irma left the car with her daughter but was “so excited” to see Dilcia that she “forgot to get [her] son.” Tr. 2/27/18, Doc. No. 210 at 99. Hernandez then locked the doors of the car with Irma's son inside. Id. at 99-100. Molestina testified that he asked Hernandez why he locked Irma's son in the car and Hernandez said that he did not want them to leave without paying, and Molestina felt as though Hernandez was kidnapping Irma's son.[12] Tr. 2/28/18, Doc. No. 211 at 340-41. Eventually, Hernandez let Irma's son out of the car but kept their immigration paperwork. Tr. 2/27/18, Doc. No. 210 at 101.

         Dilcia testified that Hernandez told her the ride cost more than a thousand dollars, and she protested because both she and Irma told him to let Irma off somewhere else. Tr. 2/28/18, Doc. No. 211 at 246. Dilcia testified that Hernandez said he had Irma's immigration documents, which would cost more than $2, 000 to replace. Id. Dilcia did not have enough money, and she testified that “when [Hernandez] saw [they] didn't have the money, he wouldn't let go of the documents or the child” and Hernandez returned to the car. Id. Dilcia offered him $700 but Hernandez said it was not enough and they would need to find more money. Id. at 248. Dilcia testified that she “felt threatened” and “felt pressured because [Hernandez] had the boy with him.” Id. They decided to find an ATM where Dilcia could get $100 to give him, and Hernandez let Irma's son out of the car, and drove by himself to the ATM, but kept the immigration paperwork and said “as long as [Dilcia] didn't give him the money, he was not going to give [her] the documents.” Id.

         Dilcia testified that she pretended to try to take the money out of the ATM but told Hernandez that she did not have any money to give him. Tr. 2/28/18, Doc. No. 211 at 249. She testified that he then “approached [her] and got close to [her]” and she was “very - very afraid” and thought he might pull a gun on her.[13] Id. Molestina testified that while Dilcia was at the ATM, Hernandez “was very close to [her and] to watching all the codes … to her card.” Id. at 342. Molestina felt the situation was “dangerous for the ladies” because it was dark and he did not know if Hernandez had anyone follow him. Id. at 343. Dilcia took out the $100 and Hernandez had her talk to his boss, Betancourt, on the phone to tell him how much she had given Hernandez. Id. at 251-52. Hernandez then returned the immigration documents to Dilcia. Id. at 252. The government introduced surveillance footage from the 7-Eleven that showed Dilcia getting the money out of the ATM and also shaking Hernandez's hand. Id. at 263; see also Gov. Ex. 11. When asked why she shook his hand, Dilcia testified: “I don't know. Out of respect. I don't know. At that moment, with fear and everything just together, I don't know.” Tr. 2/28/18, Doc. No. 211 at 263. Hernandez then left.

         Viewing the evidence together, and in the light most favorable to the government, a reasonable jury could have found Betancourt and Hernandez guilty of both kidnapping and extortion. The defendants argue first that the government failed to establish both the taking and the holding elements of kidnapping. With respect to the taking element, there was ample evidence for the jury to determine that Irma and her children were “taken” by inveiglement because she was deceived into accompanying Betancourt when he falsely represented to her that she had missed her bus. Further, there was evidence to support a conclusion that Irma was coerced to follow Betancourt through his use of psychological force when he took her son by the hand and walked away, and also took her immigration paperwork and bus tickets. The evidence supports the conclusion that Irma had no choice but to follow Betancourt, as a result of both his deception and his psychological force. Accordingly, the jury reasonably could have found that the government had satisfied the first element of kidnapping: “taking.”

         With respect to the holding element, there was also ample evidence for the jury to determine that Irma and her children were held against their will. The jury heard evidence that Irma asked Hernandez to be let out of the car at least once and he refused. Accordingly, the jury could reasonably have found find that Irma and her children were “compelled to remain where [they] did not wish to remain.” Chatwin, 326 U.S. at 460. Hernandez was aware that Irma wanted to leave and, therefore, intended to hold her against her will. Corbett, 750 F.3d at 251-52. The evidence supports the conclusion that Irma had no choice but to remain with Hernandez because he refused to let her out of the car and because she did not know where she was and did not have her immigration paperwork or bus tickets. Accordingly, the jury reasonably could have found that the government had satisfied the second element of kidnapping: “holding.”

         The defendants also argue that the government failed to prove that they extorted Dilcia because it failed to prove the element of fear. The jury reasonably could have found, however, that the defendants instilled fear in Dilcia that compelled her to pay. Dilcia testified that she protested about Irma being taken in a cab, but felt she had no choice because she was fearful for Irma's safety because she was told Irma was in upstate New York, far from where she was supposed to be. She also testified that she was only allowed to talk to Irma very briefly. Hernandez also locked Irma's son in the car and retained Irma's immigration documents, while reminding Dilcia how expensive they would be to replace, and refused to return them until he was paid. Further, Dilcia testified that Hernandez kept demanding more money, which made her feel threatened and pressured, and while at the ATM, Hernandez stood very close to Dilcia. Viewing this evidence in the light most favorable to the government, a reasonable jury could have found that Dilcia paid the money out of fear for her safety and Irma's. Moreover, the evidence supports the inference that Hernandez, through his statements and actions, knowingly created the fear that compelled Dilcia to pay.

         Further, it was clear from the testimony that Betancourt and Hernandez were working together throughout the kidnapping of Irma and her two children, and the extortion of Dilcia and, therefore that they aided and abetted each other in the commission of the two crimes. Accordingly, Betancourt's and Hernandez's motions directed to their convictions on Counts Three, Four, Five, and Six are denied.

         ii. Counts Fifteen, Sixteen, and Seventeen (Cabrera)

         In Counts Fifteen, Sixteen, and Seventeen, Cabrera was convicted of kidnapping Martina Arias Gutierrez (“Gutierrez”) (Count Fifteen) and her minor son (Count Sixteen); and convicted of extorting her daughter's partner, Darwin Gonzalez (“Gonzalez”) (Count Seventeen).

         The following facts, which the jury could have reasonably found from the evidence introduced at trial, are relevant to the counts at issue here. Gutierrez travelled from her home in Honduras to Texas in May 2017 with her seventeen-year-old son. Tr. 2/28/18, Doc. No. 211 at 377-78. They were detained by immigration authorities in Texas, where she was given a GPS monitoring bracelet and held for a few days before being released with her son. Id. at 379, 384-85. Gutierrez testified that she was cautioned not to go too far because her monitor could lose signal. Id. at 385. Immigration personnel called Gutierrez's daughter, Nubia Paz Arias (“Arias”), who was living in Connecticut, and Arias purchased bus tickets for Gutierrez and her son to travel from Texas to Connecticut. Id. at 379-81; Tr. 3/1/18, Doc. No. 212 at 499. Gutierrez and her son spent three days and nights on the bus before arriving at the Port Authority bus terminal in New York City on May 11, 2017. Tr. 2/28/18, Doc. No. 211 at 387. When they arrived at the bus station, Gutierrez was approached by a man, later identified as Pascual Rodriguez, [14] who said he was an immigration official, showed her an identification badge, and said he was waiting for her. Id. Rodriguez took Gutierrez's and her son's immigration paperwork and their bus tickets from Gutierrez. Id. at 387-89. At one point while at Port Authority, Rodriguez left with the paperwork and tickets to find a bathroom and, when he could not find Gutierrez, told her that he was worried and was “about to use the GPS that [she had on her] leg to find [her].” Id. at 390. Rodriguez then told Gutierrez that he had a taxi and was going to take them to her daughter's house.[15] Id. at 392.

         Rodriguez called Arias, and Gutierrez was allowed to briefly speak to her and tell her that she was okay. Id. at 394. Rodriguez then took Gutierrez and her son to the taxi, where there was another man, later identified as Cabrera.[16] Id. at 394. On the way, Cabrera got food for Gutierrez and her son, but the two of them did not leave the car. Id. at 395-96. Gutierrez testified that no one was stopping her from leaving the car, but she didn't feel well, and also that she thought immigration had sent Cabrera, so she did not want to leave the car because she “was obligated to follow the immigration rules.” Tr. 3/1/18, Doc. No. 212 at 481.

         While driving, Cabrera called both Arias and Gonzalez and told them that Gutierrez had accidentally arrived in Buffalo, New York. Tr. 2/28/18, Doc. No. 211 at 396-97; Tr. 3/1/18, Doc. No. 212 at 538. Gutierrez testified that Gonzalez told Cabrera he “couldn't pay all that money” if Cabrera charged him per mile, and Cabrera responded that he “needed that money.” Tr. 2/28/18, Doc. No. 211 at 410. Gonzalez testified that Cabrera told him the trip would be roughly $2, 000 and when Gonzalez asked him to lower the price, Cabrera said he would think about it and call him back. Tr. 3/1/18, Doc. No. 212 at 503. Cabrera then called Gonzalez every hour from a blocked number, and the two agreed on $1, 500. Id. Gonzalez testified that Cabrera would not tell him where they were but that it was a “very mountainous place.” Id. at 504. Gutierrez told Cabrera that her family did not have the money and told him to drop her off anywhere, and Cabrera refused.[17] Tr. 2/28/18, Doc. No. 211 at 411; see also Tr. 3/1/18, Doc. No. 212 at 485-86. Gutierrez testified that she was afraid and felt like she could not leave. Id.; see also Id. at 418. Cabrera stopped one time for Gutierrez's son to use the bathroom, and Cabrera went in with him. Id. at 412. Gutierrez stayed in the car, and she testified that she did not have a cell phone or any money. Id. at 414. They arrived at Arias' house eight hours after Gutierrez was picked up at Port Authority. Tr. 3/1/18, Doc. No. 212 at 505. Gutierrez testified that no one came to meet them outside, but Cabrera opened the car door for them and then they knocked on the door and they all, including Cabrera, [18] went inside Arias' house. Id. at 412-13.

         Gonzalez testified, however, that when Cabrera arrived with Gutierrez and her son, Cabrera called Gonzalez to come outside. Tr. 3/1/18, Doc. No. 212 at 505. Gonzalez went up to the car and Cabrera just lowered the window and said “here's your family” and let Gutierrez and her son out of the car. Id. They all went inside and then Cabrera and Gonzalez went to the bank so Gonzalez could withdraw $800 because he did not have enough cash at home. Id. at 506-07. In total, Gonzalez paid Cabrera $1, 500. Id. at 508. Gonzalez testified that he paid Cabrera because he felt responsible for his family and he felt he had no option but to pay because he did not know what would happen to his family if he did not pay. Id. at 511-12, 545. He also testified that he was afraid of Cabrera because Cabrera knew where they lived and he didn't know if Cabrera would “take action against” his family. Id. at 517. Arias also testified that they paid Cabrera out of fear and because they thought they had no other choice. Id. at 572.

         Viewing the evidence together, and in the light most favorable to the government, a reasonable jury could have found Cabrera guilty of both kidnapping and extortion. Cabrera argues that the government failed to establish both the taking and the holding elements of kidnapping. With respect to the taking element, there was ample evidence for the jury to determine that Gutierrez and her son were “taken” by inveiglement because she was deceived into accompanying Rodriguez when he falsely represented to her that he was an immigration official and had been looking for her and that she had to follow him to a taxi that would take her to Connecticut. Further, there was evidence to support a conclusion that Gutierrez was coerced to follow Rodriguez through his use of psychological force when he took her immigration paperwork and bus tickets and told her to follow him, particularly when coupled with his misrepresentation that he was an immigration official and also his statement that he could use the GPS bracelet on her ankle to find her if he needed to. The evidence supports the conclusion that Gutierrez had no choice but to follow Rodriguez, due to his deception and his use of psychological force. Accordingly, the jury reasonably could have found that the government satisfied the first element of kidnapping: “taking.”

         With respect to the holding element, there was also ample evidence for the jury to determine that Gutierrez and her son were held against their will. The jury heard evidence that Gutierrez told Cabrera to let her out of the car at least once and he refused. Accordingly, the jury could reasonably have found that Gutierrez and her son were “compelled to remain where [they] did not wish to remain.” Chatwin, 326 U.S. at 460. Cabrera was aware that Gutierrez wanted to leave and, therefore, intended to hold her against her will. Corbett, 750 F.3d at 251-52. The evidence supports the conclusion that Gutierrez and her son had no choice but to remain with Cabrera because he refused to let her out of the car and because she did not know where she was and did not have her immigration paperwork or bus tickets. Accordingly, the jury reasonably could have found that the government satisfied the second element of kidnapping: “holding.”

         Cabrera also argues that the government failed to prove that he extorted Gonzalez because it failed to prove the element of fear. The jury reasonably could have found, however, that Cabrera instilled fear in Gonzalez that compelled him to pay. Gonzalez testified that both he and Arias protested Gutierrez being driven in a taxi, but Cabrera would not tell them where they were, did not allow Gutierrez to get on the phone for very long, and called Gonzalez from a blocked number so Gonzalez could not call back. Further, the trip took eight hours and Cabrera kept telling Gonzalez they were almost there, and then would not arrive when he said they would. There was evidence that when they did arrive, Cabrera did not immediately let Gutierrez out of the car. Gonzalez testified that he paid Cabrera because he felt like he had no other choice and he did not know what would happen to his family if he did not pay. He also was worried Cabrera would take future action against them. Viewing that evidence in the light most favorable to the government, it was reasonable for the jury to find that Gonzalez paid the money out of fear for his safety and the safety of his family and, further, the evidence supports the inference that Cabrera knowingly created that fear based on his statements and actions, which compelled Gonzalez to pay.

         Further, it was clear from the testimony that Rodriguez and Cabrera were working together throughout the kidnapping of Gutierrez and her son, and the extortion of Gonzalez and, therefore that they aided and abetted each other in the commission of the two crimes. Accordingly, Cabrera's motions directed to his conviction on Counts Fifteen, Sixteen, and Seventeen are denied.

         iii. Count Nine ...


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