United States v. Munne

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS MUNNE, Defendant-Appellant.

No. 23-10258

United States Court of Appeals, Eleventh Circuit

August 30, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cr-20182-RNS-1 Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

A jury convicted Thomas Munne of committing and conspiring to commit Hobbs Act robbery, both in violation of 18 U.S.C. section 1951(a). He now appeals the convictions and his 168-month sentence. After careful review, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Robbery

Before his Hobbs Act convictions, Munne did two things for a living construction work and manufacturing marijuana vape pens. Munne's distributor was named "Arturo." At Arturo's house, Munne met another vape-pen distributor Navit Cabrera. Cabrera's practice was to buy vape pens from Arturo and then resell them to customers at higher prices. That was good for Munne because he received a share of the profits from Arturo's sales to Cabrera. But the money flow stopped. Cabrera discovered that he could make more money by being both a manufacturer and distributor, so he branched out on his own-cutting out Arturo and Munne.

After Munne found out that Cabrera was "copycatting" him he recruited a friend in California-Anrry Morales-Leiva-to rob Cabrera's mom's house. Munne and Morales-Leiva had known each other for about fifteen years. Morales-Leiva flew down to Miami, Florida at Munne's expense, and he stayed at a hotel room rented for him by Munne. He and Munne discussed two potential plans for the robbery. The first plan was simply jumping the fence of the mom's gated residential community to reach the house. The second, or "Plan B," was renting a car that looked like an undercover cop car, pulling Cabrera over during a fake traffic stop, and then using Cabrera to get through the gates. According to Morales-Leiva, Munne wanted to go with the first plan because it "would be maybe easier than going through the headache of imitating a police officer and pulling [Cabrera] over as a police officer."

The first plan proved too difficult after surveilling the gated community, so Morales-Leiva recommended that Munne go with Plan B. Munne and Morales-Leiva recruited a man named "Andy" to help carry it out. Munne also helped Morales-Leiva and Andy prepare for the robbery. He rented a grey Chevy Malibu because it looked like a police car and gave Morales-Leiva money to buy the necessary gear.

When Munne gave Morales-Leiva the money, Morales-Leiva told Munne he needed a gun and Munne told him to buy one. Morales-Leiva later bought a handgun from a friend named "Panama." He bought the other gear, as instructed by Munne, at a store called the "Spy Shop." Morales-Leiva used more than $1,500 of Munne's money to buy strobe lights for the car, police clothes and badges, and a GPS tracker to place on Cabrera's black Ford F-250 truck. He bought the GPS tracker so that they could "know exactly what [Cabrera's] location was going to be" when they wanted to pull him over. Munne told Morales-Leiva where he could find the truck and place the device.

On August 4, 2020, Morales-Leiva and Andy carried out the robbery as planned. While Cabrera was driving, Morales-Leiva and Andy used the GPS tracker to find his truck. They followed the truck onto a highway while Morales-Leiva kept Munne updated through WhatsApp, telling Munne that they were about to "pull [Cabrera] over." Morales-Leiva and Andy then turned on the strobe lights.

The impersonation strategy worked-when Cabrera saw the lights, he thought that the grey car was a cop car and pulled over to the side of the road. Morales-Leiva and Andy, dressed as cops, got out of the car, walked up to Cabrera's truck, and demanded that he exit it. Cabrera refused to exit his truck, so the two men pulled him out of it. That's when the fake traffic stop took a violent turn-Morales-Leiva and Andy held Cabrera down, handcuffed him, zip-tied his legs, repeatedly punched his face and chest until he almost passed out, and threw him into the back of his truck. Morales-Leiva also threatened Cabrera with the handgun.

Morales-Leiva took the driver's seat of Cabrera's truck. Andy returned to the grey car, and then both vehicles left the scene. Morales-Leiva called Munne as they "started driving away," telling Munne that Cabrera "was in the back, that he was tied up, zip tied." Munne told Morales-Leiva to keep him updated and "to be careful."

After ditching the rental car near a church, Morales-Leiva and Andy headed for Cabrera's mom's house in the F-250. Cabrera kept his vape-pen profits there in a safe. Cabrera didn't need to give Morales-Leiva the address or any directions; Morales-Leiva already knew where the house was. Morales-Leiva did ask Cabrera what he should "say at the guard gate" on the way there. Once the group arrived, Cabrera told the gate guard to let the truck pass through.

Plan B proved successful again-the guard let the truck pass, so Morales-Leiva and Andy went to the house and grabbed the safe. They found more than two hundred thousand dollars inside it after returning to the rental car, plus some cocaine. Morales-Leiva and Andy then left Cabrera with his truck and the handcuff keys, taking off in the rental car with the money. Morales-Leiva counted the money, split it up, and delivered Munne's share to his house.

Morales-Leiva testified that he, Munne, and Andy "were all happy that everything went smooth." But Morales-Leiva and Andy made a critical mistake during the robbery-they left the GPS tracker on Cabrera's F-250. Law enforcement was able to extract data from the tracker, which ultimately led investigators to Morales-Leiva and Munne.

Morales-Leiva's Trial Testimony

Morales-Leiva was indicted first. He pleaded guilty to carjacking and brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. sections 2119(1) and 924(c). As part of his plea agreement, he agreed to cooperate with the government. He was sentenced to 214-months' imprisonment.

A grand jury later indicted Munne for conspiring to commit Hobbs Act robbery, in violation of section 1951(a), committing Hobbs Act robbery, in violation of sections 1951(a) and 2, and carjacking, in violation of sections 2119(1) and 2. Munne pleaded not guilty, and the case was set for trial.

The government filed a notice pursuant to Federal Rule of Evidence 404(b) that it intended to have Morales-Leiva testify about these facts at trial: (1) Munne and Morales-Leiva stole more than fifty ATMs together between 2005 and 2015; (2) Munne stole several more ATMs with an man initialed "E.C."; (3) Munne was a marijuana distributor; (4) Munne intended to use the robbery money to fund cocaine distribution; and (5) Munne committed the robbery because he thought Cabrera burglarized his house. The government maintained it didn't offer this evidence to prove Munne's character or criminal propensity; instead, in the government's view, the evidence established identity, intent, motive, and facts that were inextricably intertwined with the charged offenses. Munne argued the evidence should be excluded because it only showed propensity and, alternatively, it was unfairly prejudicial under Federal Rule of Evidence 403.

Over Munne's opposition, the district court ruled most of the evidence would be admissible at trial. It excluded any testimony about Munne's ATM thefts with E.C. But Munne's ATM thefts with Morales-Leiva, the district court found, were inextricably intertwined with the charged offenses because they tended to show why Munne chose and trusted Morales-Leiva as a coconspirator. The district court concluded the remaining evidence was admissible under rule 404(b)(2) to show Munne's motive for committing the charged offenses.

The district court also overruled Munne's rule 403 objections. To that end, it found the evidence's probative value wasn't substantially outweighed by undue prejudice. It also reasoned that other safeguards would protect against any prejudice. The district court explained that it would limit Morales-Leiva to testifying that "more than five" ATM thefts were committed, and that Munne could request additional limiting instructions to the jury. The district court also wrote that Munne could cross examine Morales-Leiva about his mental health struggles to undermine the government's proof that the other acts actually happened.

Over Munne's renewed objections during trial, Morales-Leiva testified to the facts described in the government's rule 404(b) notice. For instance, Morales-Leiva testified that he and Munne stole more than five ATMs between 2005 and 2015, he and Munne split the stolen ATM money, and Munne "kept doing" the ATM thefts after Morales-Leiva was arrested in 2015. Morales-Leiva also testified Munne "was involved in selling marijuana." The district court instructed the jury that this testimony was only admissible to establish Munne's relationship with Morales-Leiva and his motive.

Morales-Leiva also testified about Munne's recruitment of him for the robbery. Specifically, Munne told Morales-Leiva that he and Cabrera "had an argument," that Cabrera "stole some of the [vape-pen] clientele," that Cabrera burglarized Munne's house, and that Munne "wanted to get back at [Cabrera]." Munne also "dream[ed]" of starting a cocaine pipeline from California to Florida. According to Morales-Leiva, Munne "would say that anybody that is doing illegal crimes, that is living, not the proper life, always had that dream of the Scarface movie and let's sell some coke."

Besides the facts specified in the government's rule 404(b) notice, the district...