At 5:34 p.m. today, a jury of six women and three men returned a verdict of guilty on two charges of conspiracy to commit murder and conspiracy to commit robbery against Honduran Miguel Mayorga, 45, a painter; Belizean Cesar Junior Aldana, 25, a construction worker of Belize City; and Guatemalans Eswin Rosalez, 19, Carlos Juarez, 20, and Jose Ismael Cordova, 19, all masons (Rosalez and Juarez are from Melchor de Mencos, while Jose Cordova is from Flores, Petén).
They had deliberated for about two hours and twenty-eight minutes.
Mayorga was additionally found guilty of two counts each of keeping a firearm and keeping ammunition without a gun license. The other four defendants were acquitted of these charges.
In his summation, presiding Justice Adolph Lucas outlined the main points of the conspiracy and firearm/ammunition charges.
The particulars on the indictment for conspiracy state that the five accused and another person, who was not identified in the indictment but is generally understood to be Francisco “Pancho” Martinez, a Mexican/Belizean who remains incarcerated in Mexico on counterfeiting charges, agreed to commit murder against Belizean businessman Jose Shoman and his family, and rob their premises in December of 2008.
In Belize’s laws, conspiracy is defined under Section 23 of the Criminal Code, Cap. 101, as “…two or more persons agree[ing] to commit or abet a crime, or act[ing] together with a common purpose in committing or abetting a crime, whether with or without any previous concert or deliberation…”
As Justice Lucas put it, “a person cannot commit conspiracy by himself.”
Murder is defined in the Code under Section 117 as intentionally causing the death of another person by unlawful harm. Robbery is defined under Section 147 of the Code as “steal[ing], and immediately before or at the time of doing so and in order to do so, … uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”
Section 24 of the Code prescribes that persons guilty of conspiracy be punished as per the statute relating to the crime in question, but only if the crime was in fact committed. If it is not, as in this case, then the punishment is as if he abetted the crime.
Under subsection 3 of subsection 20, which deals with abetment, persons found guilty of abetment of a crime are still punished as if they had committed the crime in question. If the crime is prevented by accident or by means and circumstances outside the will of the abettor, the culpable person may be sentenced, if it is in relation to murder, to life in prison, and for any other crime, to the sentence stipulated for that crime elsewhere in the Code.
Since the second conspiracy charge relates to robbery, the accused would face on conviction or indictment, a sentence of no less than ten years, possibly extending to life.
Justice Lucas reviewed the testimonies of two employees of Jose Shoman and the men credited with stopping the plot before it went forward, Eric Alexander (Alex) Miranda and Hector Perez, who recounted being invited to the home of Mayorga by Cesar Aldana on December 12, 2008, under the pretext that he, Aldana, had some money for them (Aldana claims that it was Martinez who actually had the money for them).
Miranda and Perez testified to being witness to, and participants in, a conversation with each of the five accused and Francisco Martinez, in which Martinez and Aldana outlined a plan to invade the home of Jose Shoman, their former employer, the next night, December 13, and force Shoman at gunpoint to hand over his belongings or see his children and family members killed in his sight. Three Guatemalans, identified as Rosalez, Juarez and Cordova, were reported to have talked about kidnapping the family.
Miranda and Perez said they were asked to assist the group by leaving the back gate to Shoman’s residence unlocked. In two groups of three, the attackers would have stormed the mansion from the back and the front gate, taken Shoman and his family at gunpoint, and forced him to sign a cheque for a large amount of money. They would also have raided the house and taken everything of value before killing all except one or two of its occupants.
After leaving Mayorga’s residence, Miranda and Perez went back to Miranda’s home and telephoned their employer. Miranda said he had told Martinez and Aldana in response to their request to send someone to his house that night that he could not allow that, because the woman he was living with was pregnant and should not be disturbed.
On the charges of keeping an unlicensed firearm and keeping unlicensed ammunition, Senior Crown Counsel Yohhanseh Cave, prosecutor, relied on the testimonies of four police officers: former Sergeant Tyrone Bradley; Corporal Graciano Briceno; Constable Carcamo and Constable George Ferguson, who in a search operation conducted early in the morning of December 13 at Mayorga’s premises found a rusty .22 LR pistol, a Taurus .38 Special revolver, eight rounds of .22 ammunition, six rounds of .38 ammunition, a large military-style knife and what appeared to be a ski cap, which the officers thought could be used as a mask.
Orlando Vera, firearms expert for the National Forensic Science Service, tested the firearms and checked the ammunition and found all except the .22 to be in good working condition and intact.
The defendants had spoken from the dock denying that they were all together at Mayorga’s apartment at any point on December 12, and maintaining that none of them had agreed to participate in a conspiracy.
Last week, Amandala reported that Justice Lucas, at the close of the prosecution’s case, had inquired of Cave whether defendants Rosalez, Juarez and Cordova had any case to answer in relation to the firearms and ammunition charges.
We said at the time that both defense and prosecution had made submissions in relation to the matter, and that on Thursday the judge had made his ruling, which we could not disclose until the outcome of the case was known.
Amandala can now reveal that Justice Lucas directed that Rosalez, Juarez and Cordova be released from the last four counts of the indictment, having found insubstantial evidence against them.
Justice Lucas ruled that the Crown had failed to prove the charge against the three men based on the available evidence.
Cave had argued that according to the Section 6 (a) (1) of the Firearms Act, Cap. 143, as amended by Act No. 6 of 2008, the onus is on the person(s) found in a premises where unlicensed firearms and/or ammunition are found, to prove that it was there without his knowledge.
But Justice Lucas ruled that to prove the charge of “keeping” an unlicensed firearm/ammunition, the Crown would also have to establish who “exercised physical control…having actual use, whether real or constructed” of the firearms and ammunition, as defined by Osborne’s Concise Law Dictionary, 10th edition, read in court during the judgment.
According to Justice Lucas, there is no definition for “keeping” as used in the charge in the current Firearms Act.
While Mayorga was identified by Miranda as the sole occupier of the premises, defendants Rosalez, Juarez and Cordova had only been seen there by him, Miranda, for the first time that Friday night, and Miranda said nothing in evidence about these three defendants handling the weapons that he says were shown to him. He specifically mentioned only Mayorga, Aldana and Martinez as handling and showing him any weaponry in the room.
Justice Lucas also cited two Belizean cases in defining a standard of keeping for this case that is expected to be used for future cases.
In Ignacio Coye v Cpl. #239 Frederick Till (1976), a case involving the Customs Act, then-Chief Justice Sir Denis Malone defined “keeping” a thing as “to have, hold or possess a thing, and figuratively, not to divulge.”
In Perdomo v. The Queen (Criminal Appeal 4 of 1991, issued June 14, 1991), it was established that under the Dangerous Drugs Act in force at the time, charges for items found on a person or in a premises could only be disproved if the accused could prove that the items were not there with his knowledge.
Today, the jury additionally found Aldana not guilty of the four counts of keeping an unlicensed firearm and ammunition, but found Mayorga guilty.
Mayorga and Rosalez were defended by Senior Counsel Hubert Elrington. The others were not represented by an attorney.
Sentencing for all five accused will take place on March 10, 2011. We understand that Francisco Martinez will be brought back to Belize to face justice as soon as his legal status is cleared in Mexico.