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                                                                     [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10188
                               ________________________

                      D.C. Docket No. 8:11-cr-00269-SDM-AEP-3

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

LUIS ANGEL LOPEZ,

                                                                        Defendant-Appellant.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________
                                    (April 9, 2014)

Before PRYOR and MARTIN, Circuit Judges, and GOLD, * District Judge.

PER CURIAM:

       Luis Angel Lopez appeals his conviction for the murder of Thomas Lee

Sehorne after Mr. Sehorne’s wife and her boyfriend hired Lopez to kill Mr.


*
  Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
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Sehorne for the proceeds of a life insurance policy. 18 U.S.C. § 1958(a). Lopez

challenges the denial of his renewed motion for a judgment of acquittal and motion

for a new trial. Because the United States presented ample evidence to support

Lopez’s conviction and the credibility of that evidence was for the jury to decide,

we affirm.

                                I. BACKGROUND

       In 2005, Cristie Sehorne and Jerry Bottorff met at a swingers club named

the “Pleasure Palace” in Tampa, Florida. Mrs. Sehorne, who later became Mrs.

Bottorff, frequented the club with her then-husband, Thomas Lee Sehorne, to swap

partners with other couples. Mrs. Sehorne became acquainted with Bottorff

because he worked at the front desk of the club, and the two began a relationship.

Mr. Sehorne, who often worked out of town for weeks on a tugboat on the Great

Lakes, was aware of their relationship. He even gave his permission to Bottorff.

       Mrs. Sehorne and Bottorff continued to date, and Mrs. Sehorne eventually

decided that she wanted to be with Bottorff exclusively. But Mrs. Sehorne

depended on Mr. Sehorne financially, and Bottorff did not make enough money to

support her and her two children. So Mrs. Sehorne and Bottorff hatched a scheme

to murder Mr. Sehorne for $1 million in benefits from his life insurance policy. At

first the two discussed the idea in jest, but the discussions later became serious.




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       Bottorff approached Michael Garcia, a friend of his from the Pleasure

Palace, about murdering Mr. Sehorne. Garcia, a career criminal, was once a high-

ranking officer in the Latin Kings gang. Garcia has prior convictions for

distributing narcotics, possession of a firearm as a felon, possession of

ammunition, burglary, grand theft, and possession of burglary tools. In total,

Garcia has 15 federal convictions and 10 state convictions.

       Garcia was often at the Pleasure Palace to sell drugs, and he became friends

with Bottorff and Mrs. Sehorne. Eventually, Bottorff approached Garcia about

“tak[ing] care” of Mr. Sehorne for him. Garcia replied that he could probably

arrange something. He eventually agreed to find someone to murder Mr. Sehorne

for $60,000, and Bottorff and Garcia met several times after that, sometimes with

Mrs. Sehorne and sometimes without her. The couple frequently met with Garcia

in his driveway to discuss their plans so that Garcia’s family would not be privy to

the conversations.

       Garcia played the role of the “middle man,” whose task was to find

someone to commit the murder. There was conflicting testimony at trial as to

whether Garcia ever planned to commit the murder himself, but it was undisputed

that both Mrs. Sehorne and Bottorff eventually became aware that someone other

than Garcia would commit the murder. Garcia planned with Mrs. Sehorne and




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Bottorff to have Mr. Sehorne murdered “whenever it was possible,” but the

conspirators never set a deadline.

       Garcia eventually included Lopez, who he knew from the Latin Kings and

with whom he had burgled a beauty shop in 2007, in the scheme to murder Mr.

Sehorne. Lopez, also known as “Proof,” was at Garcia’s home one day when Mrs.

Sehorne and Bottorff arrived to discuss murdering Mr. Sehorne. Mrs. Sehorne and

Bottorff remained in the front yard, and Lopez remained inside the house. When

Lopez later asked about the couple, Garcia explained who they were and what they

wanted, and Lopez then offered to commit the crime for $60,000.

       Garcia and Lopez’s first attempt to murder Mr. Sehorne failed. They knew

from Mrs. Sehorne that Mr. Sehorne often took smoke breaks near a trampoline in

the Sehornes’ yard, so they hid behind trees and waited for Mr. Sehorne to take a

smoke break for approximately an hour or an hour and a half. Lopez held the gun,

which was an 80-year-old .38 revolver owned by Garcia, and the same weapon that

Lopez later used to commit the murder. But Mr. Sehorne never emerged from the

house, and Garcia and Lopez fled when neighborhood dogs started barking.

      In the early hours of June 7, 2007, Garcia and Lopez returned to the

Sehornes’ home, and Lopez murdered Mr. Sehorne. They knew from Mrs. Sehorne

that Mr. Sehorne would be transporting a friend from the airport at night and that

he would be home late. They left Garcia’s house around midnight, and they carried

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the same .38 revolver that they had taken during the first murder attempt. When

they arrived at the Sehornes’ home, Garcia acted as the lookout and Lopez was

“the trigger man.” At Lopez’s trial, Garcia testified that he hid behind a burn pile

in the yard to keep watch for Mr. Sehorne’s truck. For his part, Lopez hid under a

van in the carport and waited for Mr. Sehorne to return home.

       Garcia had never tested the revolver to see if it would shoot. He also knew

nothing about Lopez’s ability to shoot a gun. And Garcia knew not whether the

ammunition in the gun would fire.

       When Mr. Sehorne arrived around 1:15 or 1:30 a.m., he parked under the

carport. He then left the truck and walked toward the house. Garcia testified at trial

that he could not see what happened next, but he heard an unknown voice say, “Oh

God, no,” and heard two gunshots. Garcia and Lopez then ran back to the car, and

Lopez drove them back to Garcia’s garage, where they cut off the barrel of the

revolver with bolt cutters in an attempt to render the gun unidentifiable. Later that

night, after Lopez had returned home, Garcia drove to a nearby river and threw the

gun and the shoes that the two men had worn into the water. He also disposed of

the clothes that they had worn by dropping them in a nearby trash bin.

       Garcia spoke with Lopez several times after the murder, and phone records

established frequent calls between their phones near the time of the murder. The

records proved calls between the phones on June 6, 2007, at 11:28 p.m., and on

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June 7, 2007, at 12:36 a.m. and 12:44 a.m. The next call between the phones was at

3:12 a.m, and Garcia testified at Lopez’s trial that Lopez had called him after

returning home from the murder. He also spoke with Lopez on the phone several

times over the next couple of days, but they never discussed the murder. Lopez

later called Garcia to inform him that the newspaper had run a story about the

murder. And Lopez discussed his payment with Garcia about a week after the

murder, with several additional conversations on that topic.

       About a year later, police officers arrested Garcia for crimes unrelated to

the murder of Mr. Sehorne. Garcia cooperated with the police, and he informed

them of his involvement in the murder of Mr. Sehorne, including where he had

disposed of the murder weapon. He cooperated for roughly two years before he

entered a plea agreement for Mr. Sehorne’s murder. As part of his cooperation, he

helped law enforcement gather enough evidence to arrest Mrs. Sehorne and

Bottorff. He also informed law enforcement of Lopez’s involvement in the murder.

       When a federal grand jury returned an indictment charging Lopez with

three offenses, Garcia had already pleaded guilty, and Mrs. Sehorne and Bottorff

pleaded guilty soon afterward. The United States charged Lopez with the use of a

facility of interstate commerce to commit the murder-for-hire of Mr. Sehorne, 18

U.S.C. § 1958(a); id. § 2; conspiring to use a facility of interstate commerce to

commit the murder-for-hire, 18 U.S.C. § 1958(a); id. § 2; and knowingly using and

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carrying a firearm in furtherance of the murder-for-hire, 18 U.S.C. § 924(c), (j)(1).

Lopez pleaded not guilty and proceeded to trial.

       The United States presented Garcia as the key witness in its case against

Lopez. Garcia testified that Bottorff and Mrs. Sehorne met Lopez at one point, but

that they did not discuss anything related to the murder. On cross-examination,

Lopez’s defense attorney attempted to refresh Garcia’s recollection that he had told

law enforcement officers in 2008 that Lopez was present for two meetings with

Mrs. Sehorne and Bottorff to discuss the murder, but Garcia did not recall that

statement. Garcia also testified that he hid by a burn pile during the murder of Mr.

Sehorne. But on cross-examination, Lopez’s defense attorney asked Garcia

whether he had told law enforcement in 2008 that he hid under the trampoline, not

the burn pile. Garcia testified that he did not remember that statement either.

Garcia also testified that, at first, both he and Lopez had their cell phones the night

of Mr. Sehorne’s murder, but that “I think, if I’m not mistaken, [Lopez] took [his

phone] back to his—the mother of his children[, Nina Torres].” He also testified

that Lopez had used Garcia’s cell phone that night to talk with Torres on the phone

that Lopez gave to her. Finally, Garcia testified that he never stood to gain

anything from Mr. Sehorne’s murder and that he became involved only to help his

friends.




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       Bottorff also testified for the United States. He testified that he could not

remember whether he had ever met Lopez, but that they might have met in passing

at Garcia’s house. Bottorff also testified that he had been unaware of who

murdered Mr. Sehorne until Garcia told him that it had been “Proof” when Garcia

was cooperating with law enforcement in 2008. And although Garcia had

attempted to collect money from Bottorff after the murder, Bottorff testified that

Lopez had never once tried to collect money from him.

      The United States called three jailhouse informants to testify against Lopez:

Christopher Brown, Antonio Harris, and Marquis Bruce. Brown and Harris had

both roomed with Lopez at the Pinellas County Jail, and Bruce knew Lopez from

playing basketball together. Brown testified that Lopez told him about the murder

of Mr. Sehorne and bragged about his specialty, “dome check[ing]”—that is,

shooting victims in the head. Brown also testified that Lopez told him that he had

committed the murder for a large sum of money that he never received and that he

had used a .38 revolver. Harris testified to nearly identical details of the murder,

but added that Lopez told him that he and Garcia had planned to split $100,000,

and that the payment was to come from “a lady named [Mrs. Sehorne] and her

boyfriend.” Bruce testified that he had heard Lopez claim to specialize in “dome

check[ing],” and that he had received $60,000 for his last “hit.” Counsel for Lopez

thoroughly cross-examined the informants and asked whether they would receive

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reduced sentences for testifying. He also asked two of the informants whether they

had ever read any newspaper articles about Mr. Sehorne’s murder.

       The United States also called Thomas Pettis, a homicide detective. When

Detective Pettis interviewed Lopez about the Sehorne murder, Pettis asked Lopez

about his relationship with Garcia, and Lopez informed him that they were friendly

and that Garcia had worked on his car. When Pettis asked whether he had ever

participated in a murder, whether he had heard of Mrs. Sehorne or Bottorff, and

whether he had participated in the murder of Mr. Sehorne, Lopez responded in the

negative. Pettis also testified that, when he interviewed Garcia, Garcia told him

that he had hidden under a trampoline, not a burn pile, during the murder. And

Pettis testified that Garcia told him that Lopez had been present at one or two of

the meetings with Mrs. Sehorne and Bottorff.

      The United States rested its case after offering several additional witnesses,

and Lopez moved for a judgment of acquittal. Fed. R. Crim. P. 29. The district

court denied the motion.

      Lopez then called witnesses, including Nina Torres, a former girlfriend of

Lopez and the mother of his children. Torres testified that she read a newspaper

article about the murder, which gave the details of the murder and stated that

Lopez had committed a murder for Mrs. Sehorne for $60,000. She also testified

that she had the same cellular phone number from 2003 to 2011 and that she had

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never needed Lopez’s phone for any reason. She explained that her phone was

always in service because her mother paid her phone bill.

      After Lopez rested, the jury returned a verdict of guilty on all counts. Lopez

timely renewed his motion for judgment of acquittal, Fed. R. Crim. P. 29, and

moved in the alternative for new trial, Fed. R. Crim. P. 33. Lopez contested the

sufficiency of the evidence and argued that the witnesses who testified against him

were not credible and that cell phone records proved that several phone calls

between his phone and Garcia’s phone occurred near the time of the murder. After

a hearing, the district court denied the motion.

                         II. STANDARDS OF REVIEW

      Two standards of review cover this appeal. First, we review the denial of a

motion for judgment of acquittal de novo, and we view the evidence in the light

most favorable to the United States to determine whether a reasonable jury could

have found beyond a reasonable doubt that the defendant was guilty. United States

v. Yates, 438 F.3d 1307, 1311–12 (11th Cir. 2006) (en banc); Butcher v. United

States, 368 F.3d 1290, 1296–97 (11th Cir. 2004). This standard is comparable to

the standard we apply when a defendant challenges the sufficiency of the evidence

to support his conviction. United States v. Ellington, 348 F.3d 984, 989 (11th Cir.

2003). Second, we review the denial of a motion for new trial on the ground that




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the verdict was contrary to the weight of the evidence for clear abuse of discretion.

United States v. Martinez, 763 F.2d 1297, 1312–13 (11th Cir. 1985).

                                 III. DISCUSSION

      Lopez argues that the evidence at trial was insufficient to support his

convictions and that his convictions were against the great weight of the evidence.

For the charges that Lopez used a facility of interstate commerce to commit

murder-for-hire, 18 U.S.C. § 1958(a), and conspired to use a facility of interstate

commerce to commit the murder-for-hire, id., the United States had to prove

beyond a reasonable doubt that Lopez did or conspired to use or cause another to

use any facility of interstate or foreign commerce with the intent that a murder be

committed as consideration for a promise or agreement to pay anything of

pecuniary value, id. And for the charge that Lopez knowingly used and carried a

firearm in furtherance of a murder-for-hire, 18 U.S.C. § 924(c), the United States

had to prove that Lopez committed a murder-for-hire in violation of section

1958(a) and that he used or carried a firearm in the furtherance of that crime. 18

U.S.C. § 924(c)(1)(A)(iii), (j)(1).

      Lopez’s arguments fail. A reasonable jury could have found beyond a

reasonable doubt that Lopez was guilty of each count. And the district court did not

abuse its discretion when it denied his motion for a new trial.




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      We will affirm the denial of a motion for a judgment of acquittal if a

reasonable jury could find that the evidence established the defendant’s guilt

beyond a reasonable doubt. United States v. Peters, 403 F.3d 1263, 1268 (11th Cir.

2005). “It is not necessary that the evidence exclude every reasonable hypothesis

of innocence or be wholly inconsistent with every conclusion except that of guilt . .

. . A jury is free to choose among the constructions of the evidence.” United States

v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (quoting United States v.

Hardy, 895 F.2d 1331, 1334 (11th Cir. 1990)). The United States may rely upon

the testimony of “an array of scoundrels, liars and brigands” because the jury is

free to disbelieve witnesses. Id. at 1325 (internal quotation marks omitted). “It is

well established that credibility determinations are the exclusive province of the

jury.” Id. (internal quotation marks and alterations omitted).

      When a defendant argues that the jury based his conviction on inconsistent

or contradictory testimony, the defendant must establish that the testimony was

“incredible as a matter of law.” United States v. Flores, 572 F.3d 1254, 1263 (11th

Cir. 2009) (internal quotation marks omitted). “For testimony of a government

witness to be incredible as a matter of law, it must be unbelievable on its face,”

meaning the witness must testify to “facts that [he] physically could not have

possibly observed or events that could not have occurred under the laws of nature.”

Calderon, 127 F.3d at 1325. A witness’s testimony is not incredible as a matter of

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law even if the witness “has consistently lied in the past, engaged in various

criminal activities, [or] thought that his testimony would benefit him.” Id.

      Lopez complains about the credibility determinations made by the jury, but

we will not second-guess those findings. Id. For example, Lopez argues that

Garcia’s testimony had “inherent logical flaws” because a career criminal like

Garcia would not have participated in a murder for no gain, would not have chosen

a 19-year-old member of the Latin Kings to commit the murder, would not have

selected an untested 80-year-old revolver for the murder, and would not have taken

responsibility for disposing of the weapon. But it was for the jury to decide

whether these alleged flaws in Garcia’s testimony damaged his credibility at trial,

and we cannot reweigh that evidence on appeal. See Peters, 403 F.3d at 1268;

Calderon, 127 F.3d at 1325.

      Lopez also argues that Garcia’s statements to Detective Pettis in 2008 that

he hid under the trampoline during the murder and that Lopez was present at

meetings with Mrs. Sehorne and Bottorff were inconsistent with his trial testimony.

But the jury was entitled to believe Garcia despite these and any other

inconsistencies. Although Garcia was less than an ideal witness, his testimony was

not “so contrary to the teaching of basic human experience” that no reasonable trier

of fact would believe it beyond a reasonable doubt. United States v. Chancey, 715

F.2d 543, 546 (11th Cir. 1983).

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      Lopez makes similar arguments about documentary evidence, but the issues

he raises were for the jury to decide. Lopez contends that phone records undercut

Garcia’s testimony that the men were together that night and that a newspaper

article about the murder renders the testimony of all three jailhouse informants

unreliable. But Garcia testified that he believed Lopez had given his phone to

Torres, and the jury was entitled to credit his testimony. In addition, two of the

jailhouse informants testified that they did not ordinarily read the newspaper and

that they had not read any articles about Lopez, and Lopez’s attorney failed to ask

the third informant, Bruce, whether he had read the newspaper article. The jury

again was entitled to believe the informants. See Peters, 403 F.3d at 1268.

      The evidence that the United States presented at trial was more than

sufficient to prove Lopez’s guilt. Garcia testified in great detail about his

relationship with Lopez and how the murder took place. Three jailhouse

informants testified that Lopez bragged about his crime and how he “dome

check[ed]” people and earned money for murders. Detective Pettis testified that

Lopez misrepresented the extent of his relationship with Garcia. And Garcia

informed Mrs. Sehorne and Bottorff that “Proof” had committed the murder. Based

on this evidence, a reasonable jury could have found beyond a reasonable doubt

that Lopez was guilty. See Butcher, 368 F.3d at 1296–97. None of the evidence

presented at trial was “incredible as a matter of law.” Flores, 572 F.3d at 1263.

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      We also conclude that the district court did not clearly abuse its discretion

when it denied Lopez’s motion for a new trial. Motions for new trial are

disfavored, and we have directed that district courts grant them “only in those

really exceptional cases,” when “[t]he evidence . . . preponderate[s] heavily against

the verdict, such that it would be a miscarriage of justice to let the verdict stand.”

Martinez, 763 F.2d at 1313 (internal quotation marks omitted). We agree with the

United States that “this is not one of those exceptional cases” in which we should

permit a new trial. The district court did not clearly abuse its discretion when it

concluded that the verdict was not contrary to the great weight of evidence.

                                 IV. CONCLUSION

      We AFFIRM the convictions of Lopez.




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