United States v. George A. Vallejo

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 16, 2002
THOMAS K. KAHN
No. 00-15998 CLERK
________________________

D.C. Docket No. 99-08059-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

GEORGE A. VALLEJO,
CLAUDIO ALEJANDRO CARMONA, et al.,
Defendants-Appellants.

__________________________

Appeals from the United States District Court for the
Southern District of Florida
_________________________
(July 16, 2002)

Before TJOFLAT, COX and BRIGHT*, Circuit Judges.

BRIGHT, Circuit Judge:

*
Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
 Appellants Claudio Carmona, George Vallejo, Anthony Gainer, and

Anthony Genovese were charged with various criminal acts related to the extortion

of three owners of a West Palm Beach nightclub. Carmona and Vallejo appeal

their convictions and sentences for conspiracy in violation of 18 U.S.C. § 371;

extortion in violation of 18 U.S.C. § 1951(a); mail fraud in violation of 18 U.S.C. §

1341; and money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and

1957. Gainer appeals his conviction and sentence for conspiracy in violation of 18

U.S.C. § 371 and extortion in violation of 18 U.S.C. §§ 1951(a) and 2. Genovese

appeals his conviction for conspiracy in violation of 18 U.S.C. § 371 and mail

fraud in violation of 18 U.S.C. § 1341.

We affirm each conviction and sentence with the exception of Anthony

Gainer's sentence which we vacate and remand to the district court for resentencing

consistent with this opinion.

FACTUAL BACKGROUND

In May 1996, James Layson, George Desimone and Claudio Carmona

purchased a restaurant business known as Ruby, Inc. Layson testified that Ruby,

Inc. originally operated as a restaurant during the days and evenings and as a dance

club called Bell Bottoms on the weekends. As the club became more popular, the

owners decided to phase out the restaurant and purchase a less restrictive liquor

2
license so they could run Bell Bottoms solely as a dance club. Layson and

Carmona purchased a new liquor license for approximately $50,000. Layson

testified that, in late1996, Carmona expressed an interest in leaving the partnership.

Around March 1997, Layson and Desimone secured new investors, Scott Jaspon

and Craig Zuckerman, who agreed to purchase Carmona’s share for $30,000.

Carmona’s name, however, remained on the liquor license because Layson owed

him money from a previous personal loan. According to Layson, Carmona had no

involvement with Bell Bottoms past March 1997.

Layson testified that on June 19, 1998, Carmona contacted Layson and

informed him that he wanted to meet Layson at Bell Bottoms that evening. Layson

assumed Carmona wished to collect the money Layson owed him and that

Carmona would sign the papers to transfer the liquor license. When Layson

arrived at the club that evening, two large men, later identified as Algernon

Anderson and Gainer, grabbed him and held him against his will. A man Layson

recognized as George Vallejo searched the contents of Layson’s briefcase, while

Anthony Jackson searched him for weapons. Layson testified that he saw

Carmona sitting at a nearby table and tried to ask him what was happening and if

this concerned the money he owed him. One of the men holding Layson

repeatedly warned him to “shut up, don’t move, don’t talk,” while another stood

3
next to him brandishing a “flapjack kind of weapon” in his hand. Layson noticed

Mike Yetter, one of the bartenders at Bell Bottoms, sitting nearby.

Yetter arrived at Bell Bottoms before the above-described events took place.

At trial, Yetter testified that when he arrived at Bell Bottoms, he noticed that the

locks had been tampered with and turned around to call the police. Before he

could do so, a man Yetter did not recognize told him that his boss was inside. As

Yetter moved towards the door, the man shoved him through the door where two

other men grabbed him and held him off the ground. Yetter testified that Jackson

held a machete to his throat while Vallejo ordered the two men to frisk him for

weapons. After searching him for weapons, one of the men escorted Yetter to a

hallway in the back of the club where he was told to sit. Layson arrived a few

minutes later.

Layson testified that he eventually sat down at the table with Carmona and

asked again if this was about the money he owed Carmona. Carmona stated that he

was upset at the recent radio advertisement for Bell Bottoms, which, according to

Carmona, showed disrespect for a nightclub called Darkside that Carmona and his

brother, Fernando, owned. Carmona asked Layson to have Jaspon and Desimone

meet them at Bell Bottoms. At that point, Layson stated that he left Bell Bottoms

4
and walked next door to Montana’s, a restaurant in which he had an interest and

was scheduled to open up that evening.

Layson testified that he did not know whether to call the police because he

feared that Carmona or someone associated with Carmona would seriously harm or

kill him or his family. Jaspon and Desimone arrived at Bell Bottoms while Layson

and Yetter were next door at Montana’s. Layson then joined Jaspon, Desimone

and Carmona at Bell Bottoms. Layson and Jaspon testified that Carmona informed

them that they were to sign the club over to him and he in return would pay each of

them $1,000 per month for thirty months. Layson testified that Carmona and

Vallejo told Jaspon, Desimone, and Layson that the papers had to be signed that

night.

Layson, Jaspon and Desimone left to discuss their options at Montana’s.

While all of this was going on, Bell Bottoms’ employees began to arrive for work.

Carmona told the employees that they were fired. Carmona testified that he and

Vallejo had arranged for a new staff to come in and run Bell Bottoms that evening.

Layson and Jaspon testified that they agreed to sign the documents

transferring ownership of Bell Bottoms to Carmona because they feared for their

lives and personal safety. They each signed a promissory note and a bill of sale.

Layson additionally signed a third document that purported to transfer Bell

5
Bottoms’ liquor license to Carmona. Anthony Genovese, a notary commissioned

in the State of Florida, notarized the documents. Layson and Jaspon testified that

Genovese notarized some of the documents before they were signed. Carmona

later realized that the documents were deficient. He created a new set of

documents, and forged Layson, Desimone and Jaspon’s signatures. Genovese also

notarized these documents.

Carmona and Vallejo opened a nightclub called “Club Alibi” at the location

formerly occupied by Bell Bottoms. On June 22, 1998, three days after the

takeover, local law enforcement closed Club Alibi because it did not have the

required occupational licenses. Approximately one week after the takeover,

Carmona submitted documents, notarized by Genovese, to Consolidated Capital

seeking a $38,000 loan. As collateral, Carmona put up the liquor license that

Layson had been forced to sign over on June 19, 1998. On June 30, 1998,

Carmona submitted an application, notarized by Genovese, to transfer the liquor

license to his name. Between June 30, 1998 and July 8, 1998, various documents

related to the loan and fraudulent transfer of ownership of Bell Bottoms were

mailed via United States Parcel Service and United States Postal Service.

In April 1999, police arrested Carmona, Vallejo, Genovese, Anderson and

Gainer. Gainer admitted that he was present at Bell Bottoms on June 19, 1998, and

6
that Vallejo had called him earlier that evening to tell him that they were going to

open the nightclub. Gainer also stated that his physical presence made Layson,

Desimone and Jaspon very nervous, and he believed that was why they agreed to

the takeover.

During the prosecution’s case, Detective Frazier, a government witness,

made an improper statement regarding appellants’ post-arrest silence. The district

court granted appellants’ motion for mistrial and immediately scheduled jury

selection for a new trial.

Appellants subsequently waived their right to trial by jury and agreed to

proceed with a bench trial. The bench trial began on February 17, 2000, with the

government resting its case later that day. The appellants made Rule 29 motions

for acquittal at the close of the government’s case and prior to closing argument,

which the district court denied.

The district court found Carmona, Vallejo, Gainer and Genovese guilty, but

acquitted Anderson of all counts. The district court found Carmona guilty of

conspiracy, extortion, mail fraud and money laundering and sentenced him to 60,

120, and 168 months imprisonment to be served concurrently. The court also

placed him on supervised release for three years. The district court sentenced

Vallejo to 60, 120, and 144 months imprisonment to be served concurrently and

7
placed him on supervised release for three years. The district court found

Genovese guilty of conspiracy and mail fraud and sentenced him to twenty-four

months incarceration for each count to be served concurrently and three years

supervised release. Finally, the district court found Gainer guilty of conspiracy

and extortion and sentenced him to sixty and ninety-six months to be served

concurrently, and three years supervised release. The district court further ordered

all four defendants to jointly and severally pay restitution in the amount of

$345,000.

ANALYSIS

I.

A. Double Jeopardy

On appeal, appellants argue that the Double Jeopardy Clause barred their

retrial because the government’s conduct left them with no choice but to request a

mistrial. The Double Jeopardy Clause does not bar retrial after the grant of a

defendant's motion for mistrial unless the prosecution intentionally goaded the

defendant into moving for a mistrial. United States v. Fern, 155 F.3d 1318, 1324

(11th Cir. 1998). Appellants contend that the district court erred by finding that

the government did not intentionally precipitate a mistrial in order to gain a better

opportunity to convict them in a second trial.

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 In considering a motion for double jeopardy, the trial court should rely on

the objective facts and circumstances of the particular case. Id. (citing Oregon v.

Kennedy, 456 U.S. 667, 679-80 (1982) (Powell, J., concurring)). We review the

district court’s factual finding for clear error and its application of the law to those

facts de novo. Id. The court's determination of the prosecutor’s intent is a finding

of fact. Id. We must decide whether the district court’s determination that the

prosecution did not intentionally goad the defendants to move for a mistrial was

clearly erroneous.

When it granted the defendants' motion for mistrial, the district court stated

for the record that it accepted the prosecutor's representation that he was surprised

by Detective William Frazier's improper comments on the appellants' post-arrest

9
silence1 and did not intend to cause a mistrial. The court also summarily denied

defendants' motion to dismiss the indictment on double jeopardy grounds.

1
Frazier gave the following testimony in response to the prosecutor’s questions about
why and how Frazier came to question Anthony Jackson:

[Prosecutor]: In any of the interviews which you have participated with Tony
Jackson on, did he ever ask not to be prosecuted by the
government?
[Frazier]: No, he never did.
....
[Prosecutor]: Did he seem concerned about being prosecuted?
[Frazier]: Well, he was petrified.
[Prosecutor]: Can you tell the ladies and gentlemen of the jury why you elected
not to arrest Tony Jackson up until this point in time right now?
[Frazier]: Yeah, I can. I was looking for cooperation from the defendants’
side of the camp. That’s why I didn’t arrest him. Up until that
time I met Mr. Jackson I hadn’t reached or--I hadn’t obtained any
kind of cooperation from their side, excuse my language, of the
camp--

Carmona moved for a mistrial claiming that Frazier’s testimony, about no cooperation “from
their side,” amounted to an improper comment of post-arrest silence. Instructing the prosecutor
to continue, the district court notified the parties that the motion would be considered during the
lunch recess. The prosecutor stated for the record that he believed Frazier intended to say the
word corroboration rather than cooperation. The prosecutor resumed questioning Frazier:

[Prosecutor]: Now, Detective Fraser [sic], up until this point in time you had
interviewed all the victims in the case?
[Frazier]: Yes, I had, sir.
[Prosecutor]: So you had their view of the events?
[Frazier]: Sure.
[Prosecutor]: Did you want to obtain corroboration of their version of the
events?
[Frazier]: Yes, sir.
....
[Prosecutor]: Did you want to obtain corroboration of some sort?
[Frazier]: Period, yes, sir, I did.
[Prosecutor]: Okay. From whose perspective?
[Frazier]: The defendants.

10
 On appeal, appellants attempt to demonstrate that Detective Frazier's

improper comments on the appellants' post-arrest silence did not surprise the

government. They point to Frazier's testimony during the bench trial that he had

told the prosecutor what his “answer would be as to why [Frazier] didn't arrest

Anthony Jackson.” Based on this statement, appellants contend that the prosecutor

must have known that Frazier would make improper comments.

The government responds that the district court did not clearly err in

determining that the prosecutor did not intend to provoke a mistrial because Frazier

did not give the response expected by the prosecutor. In support of this position,

the government points to Frazier's bench trial testimony where he clarifies that his

discussions with the prosecutor focused on the fact that Jackson had not been

arrested because he had been cooperative from the beginning of the investigation.

Accordingly, Frazier's testimony offers no basis for concluding that the prosecutor

questioned him with the intent of provoking a mistrial.

Under Oregon v. Kennedy, only deliberate prosecutorial misconduct

implicates double jeopardy principles. 456 U.S. at 678. Just after granting the

motion for mistrial in this matter, the district court made a clear finding that the

government had not engaged in gross negligence or intentional misconduct:

11
 The court finds that the conduct of the government in bringing
– the court accepts the representation by the prosecutor that this
answer was a surprise to the prosecutor.
So it is really not the conduct of the prosecutor, although it is
the government's witness. So the court finds that the conduct of the
government through the witness, if you will, in bringing about this
mistrial does not constitute gross negligence or intentional
misconduct.

Appellants have not presented sufficient evidence to show clear error in the district

court’s determination that the prosecutor did not intentionally “goad” appellants to

move for mistrial. The Double Jeopardy Clause did not bar appellants’ retrial.

B. Discovery Violations

Appellants argue that the prosecutor violated Giglio v. United States, 405

U.S. 150 (1972), and Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide

the defense with the correct criminal history record (“rap sheet”) for Anthony

Jackson, a government witness. In January 2000, while preparing for trial, the

prosecution discovered that it had provided to the defense the rap sheet for another

Anthony Jackson. However before the trial began, the prosecutor delivered the

correct rap sheet with a letter explaining the error. Nonetheless, appellants argue

that this error prevented the defense from cross-examining Jackson on any

concessions or benefits he received from the government in exchange for his

testimony. They assert that, had the government not misled them concerning the

12
identity of the witness, the outcome of the trial and sentencing would have been

different.

We review the district court’s denial of a motion for new trial based on

newly discovered evidence for abuse of discretion. United States v. Obregon, 893

F.2d 1307 (11th Cir. 1990). Similarly, a district court’s denial of a motion for new

trial based on a Brady violation is reviewed for abuse of discretion. United States

v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998).

In order to succeed on a Giglio challenge, the defendant must demonstrate

that the prosecutor “knowingly used perjured testimony, or failed to correct what

he subsequently learned was false testimony, and that the falsehood was material.”

United States v. Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001), petition for cert.

filed, (U.S. June 25, 2001) (No. 01-10864) (quotations omitted).

To establish a Brady violation, the defendant must show that (1) the

government possessed favorable evidence to the defendant; (2) the defendant does

not possess the evidence and could not obtain the evidence with any reasonable

diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the

evidence been disclosed to the defendant, there is a reasonable probability that the

outcome would have been different. United States v. Meros, 866 F.2d 1304, 1308

(11th Cir. 1989).

13
 At sentencing, appellants argued that the prosecution intentionally kept the

correct information about Jackson from the defense. Appellants moved the district

court to grant a new trial on the basis of newly discovered evidence. The district

court denied the motion on the grounds that the information was public record and

the appellants failed to show that they exercised due diligence in discovering it.

Furthermore, the district court ruled that even if the evidence had been presented

during the bench trial, it would not have affected the outcome of the court's

decision.

We conclude that the district court did not abuse its discretion by denying

Carmona's and Vallejo’s motion for new trial based on discovery violations. The

appellants failed to show that the witness perjured himself or that the prosecutor

failed to correct false testimony. Additionally, the evidence withheld by the

government could have been obtained through reasonable diligence.

B. Prosecutorial Misconduct Before the Grand Jury

For the first time on appeal, appellants argue that this court should dismiss

the indictment based on improper prosecutorial conduct that occurred before the

grand jury. They allege that the prosecutor persistently misled the grand jury by

stating that Carmona had no legal right or interest in Bell Bottoms. Appellants

further argue that the derogatory statements made by Desimone and Detective

14
Frazier about Carmona and his family improperly influenced the grand jury’s

decision to indict the appellants.2

Generally, we review for abuse of discretion the denial of a motion to

dismiss an indictment. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.

1998). However, because appellants raise this issue for the first time on appeal, we

review it for plain error. United States v. Olano, 507 U.S. 725, 731-32 (1993).

Under this standard, there must be an error that is plain and that affects substantial

rights. Id. When these three factors are met, the courts of appeal may then

exercise their discretion and correct the error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 736.

2
Several grand jury witnesses stated or implied that Carmona had no legal right or
interest in Bell Bottoms. Additionally, the prosecutor asked Desimone about Carmona’s
reputation in the community and about his family’s reputation with respect to violence.
Desimone replied that “I know they are big guys. They won’t take any crap that’s for sure.” On
that same day a grand juror asked Detective Frazier the following question regarding a statement
made by Gainer:

[Juror]: When I hear somebody say family that reminds me of the mob. Is
this true?
[Frazier]: Yes, sir, it does. That’s the connotation it gives me also.

In response to Frazier’s comment, the prosecutor stated the following:

[Prosecutor]: I should note for the record, however, that your determination of
probable cause, ladies and gentlemen, should be determined solely
on the basis of your evaluation of the evidence before you, and you
know, whatever you may think about what Mr. Gainer meant by
that statement shouldn’t be used to form a basis of opinion solely
based on prejudice.

15
 Under Bank of Nova Scotia v. United States, 487 U.S. 250, 251 (1988), the

district court must ask whether the error before the grand jury “‘substantially

influenced the grand jury’s decision to indict,’ or [whether] there is ‘grave doubt’

that that decision [to indict] was free from such substantial influence [of such

violations].” Id.

Appellants' contention that the prosecutor misled the grand jury about

whether Carmona had any interest in Bell Bottoms or the liquor license is

immaterial. Whether Carmona had an interest in the club and the license, has no

bearing on whether he extorted the owners into giving up their interests in the club.

Appellants also fail to make any connection between Carmona's alleged interest in

Bell Bottoms and how the lack of that information might have substantially

influenced the grand jury’s decision to indict.

Appellants argue that the derogatory statements made in reference to

Carmona and his family improperly influenced the grand jury’s decision to indict.

This argument is also without merit. The derogatory statements concerning

Carmona and his family’s reputation were not made by the prosecutor; they were

made by Desimone, a witness and a victim. Desimone’s statements demonstrated

his fear that something would happen to him if he did not sign the club over that

evening. The indictment charged Carmona with extortion. A crucial element in

16
proving extortion is the victim’s fearful state of mind. United States v. Grassi, 783

F.2d 1572, 1578 (11th Cir. 1986). Grassi defined extortion as obtaining “property

from someone else with his consent, but whose consent is brought about or

induced by the wrongful use of actual or threatened force, violence, or fear. . . .

‘[F]ear’ means a state of anxious concern, alarm or apprehension of harm, and it

includes fear of economic loss as well as fear of physical violence.” Id. at 1577.

Desimone’s comment demonstrated that he was fearful that he would be physically

harmed if he did not consent to Carmona’s takeover.

Additionally, Detective Frazier’s statement that the appellants were similar

or analogous to the mob can hardly be seen as so prejudicial as to substantially

influence the grand jury’s decision to indict. As stated above, the appellants were

charged with and convicted of extortion. The reputations of the appellants and

their families are certainly relevant as to whether the victims were “induced by

wrongful use of actual or threatened force, violence, or fear” to sign over the

nightclub. 18 U.S.C. § 1951(b)(2). Furthermore, following Frazier’s comment, the

prosecutor instructed the grand jury that their determination should be based solely

on the evidence, not on what they think about the appellants.

17
 For the foregoing reasons, the district court’s failure to dismiss the

indictment based on the prosecutor’s conduct before the grand jury does not

constitute plain error.

C. Effect on Interstate Commerce

Gainer maintains that the government failed to provide sufficient evidence to

establish that the extortion affected interstate commerce. Considering the evidence

in the light most favorable to the government, we review de novo whether

sufficient evidence was presented at trial to support appellants' convictions. United

States v. Guerra, 164 F.3d 1358, 1359 (11th Cir. 1999).

The Hobbs Act criminalizes conduct that “in any way or degree obstructs,

delays, or affects commerce or the movement of any article or commodity in

commerce, by robbery or extortion or attempts or conspires so to do.” 18 U.S.C. §

1951(a). The Supreme Court explained that the Hobbs Act “speaks in broad

language, manifesting a purpose to use all the constitutional power Congress has to

punish interference with interstate commerce by extortion, robbery or physical

violence. The Act outlaws such interference ‘in any way or degree.’” Stirone v.

United States, 361 U.S. 212, 215 (1960). Furthermore, this court held in United

States v. Gray, 260 F.3d 1267, 1272 (11th Cir. 2001), that “the jurisdictional

18
requirement may be met simply by showing that the offense had a minimal effect

on commerce.”

In United States v. Paredes, 139 F.3d 840, 844 (11th Cir. 1998), the

defendants robbed two local convenience stores of beer, cigarettes, and no more

than $170 in cash. We concluded that although the robberies were made from

“two local convenient [sic] stores that are not connected to out-of-state stores,”

evidence showed that “some merchandise was manufactured out of state.” Id. We

held this minimal effect on interstate commerce was sufficient to satisfy a Hobbs

Act conviction. Id. at 844-45.

Testimony at trial established that Bell Bottoms purchased liquor and beer

locally in Florida, but that these liquors were manufactured in other states and

foreign countries. A beer distributor employee testified that from March 1997

through June 1998 Bell Bottoms regularly purchased beer manufactured outside

the state of Florida. Layson testified that Bell Bottoms purchased no alcohol

between June 19, 1998 and mid-October 1998. Thus, at a minimum, beer

purchases from out of state were affected after the June 19, 1998 incident.

We conclude that the government presented sufficient evidence for a

reasonable factfinder to conclude that the extortion affected interstate commerce.

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 II.

Appellants raise various challenges to the sentencing enhancements imposed

by the district court under the Sentencing Guidelines. We review the district

court’s factual findings for clear error and its application of the Guidelines to those

facts de novo. United States v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000).

A. Physical Restraint

Carmona, Vallejo and Gainer argue that the district court improperly

imposed a two-level enhancement pursuant to § 2B3.2(b)(5)(B) because the

evidence at trial did not establish that any person was physically restrained during

the commission of the crime. They assert that the victims' movements between the

club and the restaurant next door, demonstrates they were not physically restrained

as defined by the Guidelines.

A two-level enhancement is appropriate “if any person was physically

restrained to facilitate commission of the offense or to facilitate escape.” U.S.S.G.

§ 2B3.2(b)(5)(B). Physical restraint is “the forcible restraint of the victim such as

by being tied, bound, or locked up.” U.S.S.G. § 1B1.1, cmt. n.1(h).

Although we have not addressed the scope of “physical restraint” within the

context of § 2B3.2(b)(5), which pertains to extortion by force or threat of injury or

20
serious damage, we have addressed the scope of “physical restraint” within the

context of § 2B3.1(b)(4), which pertains to robbery. In United States v. Jones, 32

F.3d 1512, 1519 (11th Cir. 1994), we held that “[a]lthough no threats were made,

the obvious presence of handguns ensured the victims’ compliance and effectively

prevented them from leaving the room for a brief period . . . .”

Here the co-conspirators physically restrained their victims. Yetter and

Layson both testified that two large men grabbed them and held them against their

will. This constitutes physical restraint because the victims had no alternative but

to comply and were effectively prevented from leaving the club, even if only for a

short time. The fact that the victims were eventually free to leave does not mean

that they were not physically restrained. See Jones, 32 F.3d at 1519 (“Even though

the vault door was not locked and the victims were able to free themselves easily,

the victims were forced to comply.”) (citing United States v. Schau, 1 F.3d 729,

730 (8th Cir. 1993)).

The record adequately supports the district court’s findings.

B. Threat of Bodily Injury

Carmona, Vallejo and Gainer also assert that there was no basis in the record

to conclude that any real or perceived threats took place against the owners of the

21
nightclub; therefore, the district court improperly applied a two-level enhancement

for express or implied threat of bodily injury pursuant to § 2B3.2(b)(1). They

contend that the use of the machete cannot be imputed to them because it was an

“aberrant, unexpected and independent act” that was not reasonably foreseeable.

Section 2B3.2(b)(1) provides for a two-level increase if “the offense

involved an express or implied threat of death, bodily injury, or kidnapping.”

U.S.S.G. § 2B3.2(b)(1). Commentary to this section states that “[e]ven if the threat

does not in itself imply violence, the possibility of violence or serious adverse

consequences may be inferred from the circumstances of the threat or the

reputation of the person making it.” U.S.S.G. § 2B3.2, cmt. n.2. Additionally, co-

conspirators are responsible for “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity . . . .” U.S.S.G. §

1B1.3(a)(1)(B).

The evidence, specifically the testimony of Layson and Yetter, sufficiently

supports the two-level increase for threat of bodily harm. The government's

assertion that threats of bodily injury were “part and parcel” of a violent extortion

scheme in this case is convincing.

The record reflects that two men grabbed Yetter and another held a machete

to his throat after he walked into the club. Yetter stated that he was “[p]retty

22
scared . . . [he] thought [he] was going to end up getting killed . . . .” Layson

testified that when he indicated that he would not sign the club over, Desimone

urged him to sign the papers stating that “you [Layson] don’t know how bad these

guys are. You don’t know what they will do.” Layson testified that Desimone

informed him of previous acts of violence committed by Claudio Carmona and

Fernando Carmona. He further testified that he signed the papers and did not call

the police that night because he was afraid that the appellants would come to his

home and kill him or his family. Based on the evidence and the reputation of the

appellants, the district court did not clearly err by finding that the victims were

threatened with death or serious bodily injury.

C. Brandishing a Dangerous Weapon

Carmona and Vallejo contend that the district court erred by applying a

three-level enhancement for brandishing a dangerous weapon pursuant to

§ 2B3.2(b)(3)(A)(v), arguing that it was not reasonably foreseeable that any

weapon would be present.

A three-level increase is applied to a defendant’s sentence “if a dangerous

weapon was brandished or possessed” during the commission of extortion by force

or threat of injury. U.S.S.G. § 2B3.2(b)(3)(A)(v).

23
 Carmona and Vallejo do not challenge the presence of a dangerous weapon,

only whether it was reasonably foreseeable that one would be used during the

commission of the offense. Carmona and Vallejo deliberated and carried out the

forced sale of a nightclub from its owners. We cannot accept the argument that

they had no reason to foresee that a dangerous weapon might be employed to force

the victims to give up ownership of their business. As such, the district court did

not clearly err by enhancing Carmona's and Vallejo's sentences for brandishing a

dangerous weapon.

D. Obstruction of Justice

Carmona argues that the district court improperly applied a two-level

enhancement for obstruction of justice pursuant to § 3C1.1. The Sentencing

Guidelines provide for a two-level enhancement if the defendant “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution, or sentencing of the

instant offense.” U.S.S.G. § 3C1.1. The district court must make an independent

factual finding that the defendant gave perjured testimony on a material matter in

order to apply the enhancement. United States v. Jones, 32 F.3d 1512, 1519 (11th

Cir. 1994). It is preferable that the district court make specific findings as to each

instance of obstruction by identifying the materially false statements individually.

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United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996). It is sufficient,

however, that the district court makes “a general finding of obstruction of justice

that encompasses all of the factual predicates of perjury.” Id.

At sentencing, the government identified eight false statements that Carmona

allegedly made during the trial. The district court found that two of those

statements were false and material; therefore, a two-level enhancement for

obstruction was appropriate. One of the statements concerned whether or not

Carmona received the $30,000 for his interest in Bell Bottoms. Carmona testified

that he never received the money. The other statement involved whether Carmona

told Jackson not to allow the victims to leave the nightclub until the “meeting” was

over.

On appeal, Carmona argues that the two statements relied upon by the

district court were neither material nor false. He asserts that whether or not he

received the money for his share of Bell Bottoms is irrelevant to any element of the

offense and, thus, not material. Carmona further contends that the statement made

to Jackson pertained to the staff that he had arranged to come in and run the

nightclub that night, not the victims.

The district court’s finding that Carmona’s testimony was false and related

to a material matter was not clearly erroneous. Both Layson and Jaspon testified

25
that Carmona received three installments totaling $30,000 for his share, thereby

refuting Carmona’s statement that he had not received any compensation for his

interest in Bell Bottoms. Furthermore, Jackson testified that Carmona stated that

no one was to leave until the meeting was over. This testimony directly contradicts

Carmona’s contention that he never told anyone to stop the owners from leaving

the nightclub. Because the district court made the required factual findings that

Carmona perjured himself on the witness stand, the two-level enhancement for

obstruction of justice was not clearly erroneous.

E. Role in the Offense

Vallejo argues that the evidence presented to the district court does not

support a finding that he was an organizer or leader of a criminal enterprise

involving five or more participants within the meaning of § 3B1.1.

Section 3B1.1(a) provides for a four-level enhancement to the base offense

level of any defendant who “was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” The Guidelines set

forth several factors for the sentencing court to consider in determining whether the

defendant served a leadership or organizational role. U.S.S.G. § 3B1.1, cmt. n.4.

These factors include: (1) exercise of decision-making authority, (2) nature of

participation in the commission of the offense, (3) recruitment of accomplices, (4)

26
claimed right to a larger share of the fruits of the crime, (5) degree of participation

in planning or organizing the offense, (6) nature and scope of the illegal activity,

and (7) degree of control and authority exercised over others. Id.

The defendant does not have to be the sole leader or kingpin of the

conspiracy in order to be considered an organizer or leader within the meaning of

the Guidelines. United States v. Revel, 971 F.2d 656, 660 (11th Cir. 1992).

Furthermore, “[b]ecause the district court must interpret the factors stated in the

commentary, and must exercise its best judgment as to the application of the facts

to these standards, its decision is entitled to one of deference on appeal.” Id.

(quotations omitted).

The evidence at trial established that Vallejo: (1) gave orders to others

involved with the conspiracy; (2) arranged for all of the security at the club on June

19, 1998, and planned on handling the security after Carmona took control of the

club; and (3) arranged for the notary to sign the papers that night. Jackson testified

that Vallejo was one of his bosses, along with Carmona and Carmona’s brother.

Moreover, both Vallejo and Carmona arranged and coordinated who would be

present on June 19, 1998. The district court’s finding that Vallejo acted as an

organizer or leader under section 3B1.1 was not clearly erroneous.

F. Multi-object Conspiracy

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 When a defendant is convicted of conspiracy, the sentencing court is to

apply the offense level that it would have applied had that defendant been

convicted of the substantive offense on which the conspiracy charge is based. See

U.S.S.G. § 2X1.1(a); § 1B1.2(d) (“A conviction on a count charging a conspiracy

to commit more than one offense shall be treated as if the defendant had been

convicted on a separate count of conspiracy for each offense that the defendant

conspired to commit.”). Where a count charges a conspiracy to commit multiple

offenses, the Guidelines caution:

Particular care must be taken in applying subsection (d) because there
are cases in which the verdict or plea does not establish which
offense(s) was the object of the conspiracy. In such cases, subsection
(d) should only be applied with respect to an object offense alleged in
the conspiracy count if the court, were it sitting as a trier of fact,
would convict the defendant of conspiring to commit that object
offense.

U.S.S.G. § 1B1.2(d), cmt. n.4.

This court has construed the words “were it sitting as trier of fact” to mean

that “the court must find beyond a reasonable doubt that the defendant conspired to

commit the particular object offense.” United States v. McKinley, 995 F.2d 1020,

1026 (11th Cir. 1993). Again in United States v. Ross, 131 F.3d 970, 989 (11th

Cir. 1997), we held that, where a count charges a conspiracy to commit more than

28
one offense, the district court must find beyond a reasonable doubt that the

defendant conspired to commit that particular offense conduct in order to apply the

corresponding offense level as found in the Sentencing Guidelines. 131 F.3d at

989. Likewise, in United States v. Farese, 248 F.3d 1056, 1060-61 (11th Cir.

2001), we vacated the defendants’ sentences holding that the district court erred in

applying a preponderance of the evidence standard, rather than finding that the

defendants conspired to commit money laundering beyond a reasonable doubt. Id.

Gainer argues that the district court erred in sentencing him on the basis of a

multi-object conspiracy because it did not find beyond a reasonable doubt that he

conspired to commit each object offense of the conspiracy.

The trial court found Gainer guilty of one count of conspiracy in violation of

§ 371 and one count of extortion in violation of § 1951(a). The indictment alleged

and the government argued at trial that there were four objects of the § 371

conspiracy: extortion; mail fraud; § 1956(a) money laundering; and § 1957 money

laundering. When the trial court announced its finding of Gainer's guilt, it made no

mention of any of the four objects of the conspiracy.

Prior to sentencing, a probation officer prepared a Presentence Investigative

Report in which she factored all four objects of the conspiracy into Gainer's

offense level. Pursuant to the grouping guidelines, she grouped the substantive

29
extortion count and the conspiracy to commit extortion count together, and then

grouped the remaining objects of the conspiracy, mail fraud and money laundering,

into a second group. Under this scheme, Gainer’s offense level increased by one-

level, pursuant to § 3D1.4.

At sentencing, Gainer objected to the one-level adjustment, arguing that he

was convicted of conspiracy to commit extortion, not conspiracy to commit mail

fraud and money laundering. Therefore, in order for the district court to sentence

him under a multi-object conspiracy, Gainer asserted that the court must find that

he committed each object of the conspiracy beyond a reasonable doubt. The

government acknowledged at sentencing, and again in its brief to this court, that

the standard for sentencing based on the substantive objects of a conspiracy is

proof beyond a reasonable doubt.

Prior to ruling on Gainer’s multiple sentencing objections, including his

multi-object conspiracy objection, the district court adopted a general

preponderance of the evidence standard for all of its findings and then proceeded to

overrule Gainer's objection:

The court makes the following findings by a preponderance of the
evidence.
....

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 Regarding Mr. Gainer's objection to the improper grouping or
double counting, the court will deny that objection. The court adopts
the comments of the government, as well as the probation officer as its
reasons in denying that objection.

Shortly after making these statements, the court evidently clarified its ruling

by stating that it “adopts the comments of the government as set forth in its

omnibus response and the comments of the probation officer as set forth in the

various addenda as additional reasons of the court for making its rulings.” Review

of the record, however, reveals that the Government's Omnibus Response to the

Presentence Investigative Reports, filed on August 4, 2000, pertains only to

Carmona, Vallejo and Genovese. The government had filed a response to Gainer's

individual sentencing objections on June 26, 2000.

The government's response to Gainer's multi-object conspiracy objection

presented two arguments3 for why Gainer should be found liable for all four

objects of the conspiracy, but ultimately concludes, “This Honorable Court did, of

3
First, the government argues that the conspiracy count is “in essence subsumed” in the
extortion count because § 371 conspiracy carries only a five-year maximum imprisonment
whereas the extortion count has a twenty-year maximum. We can dismiss this argument because
Gainer's objection is based on the one-level increase in his offense level due to grouping the
conspiracy and extortion counts, not a higher maximum penalty.

Second, the government argues that Gainer should be sentenced based on the mail fraud
and money laundering objects because under co-conspirator liability articulated in Pinkerton v.
United States, 328 U.S. 640 (1946), there is ample evidence to prove that the mail fraud and
money laundering should have been reasonably foreseeable to Gainer.

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course, sit as a trier of fact upon the case, and is thus the only party capable of

resolving the application of this section.” Similarly, the probation officer's

addendum suggests that Gainer's participation in the extortion led to the mail fraud

and money laundering, but is powerless to resolve the issue: “This issue is not

resolved.” Both the government and the probation officer tacitly recognized that

the district court was required to make findings beyond a reasonable doubt on each

of the objects of the conspiracy.

On appeal, the government argues that, because the district court both acted

as the trier of fact and imposed the sentence, the court's decision to base Gainer’s

sentence on a multi-object conspiracy for mail fraud and money laundering

necessarily implies that those objects were proved beyond a reasonable doubt.

We decline to adopt the government's argument for two reasons. First, it is

not clear that the district court applied the proper standard of proof. The court

adopted a general preponderance standard when ruling on Gainer's multiple

sentencing objections and never mentioned proof beyond a reasonable doubt.4 We

will not assume that the district court applied the proper standard in the absence of

any explicit statement by the court. Our precedent makes clear that “failure to

4
The government urges us to accept that the district court knew the proper standard
because defense counsel argued the proper standard in its oral objection at sentencing.

32
apply the proper standard of proof at sentencing compels us to vacate the

appellant[']s sentence[] and remand this case to the district court for resentencing.”

Farese, 248 F.3d at 1061 (emphasis added).

We also reject the government's argument that “what happened at sentencing

reflects the court's view about what the government had proven at trial.” Again,

we will not speculate about the trial court's findings. The Guidelines and the

precedent in this circuit provide sentencing courts with a specific framework for

sentencing a defendant on the objects of a conspiracy. Because there is nothing in

the record that clearly indicates the district court made findings in accordance with

these provisions, we vacate Gainer's sentence and remand for resentencing.

AFFIRMED IN PART and REVERSED IN PART.

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