United States v. Gomez-Encarnacion , 885 F.3d 52 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-2345
UNITED STATES OF AMERICA,
Appellee,
v.
SANTOS GÓMEZ-ENCARNACIÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Kayatta, Circuit Judge.
Elaine Pourinski on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, Acting
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, on brief for appellee.
March 20, 2018
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
KAYATTA, Circuit Judge. In 2014, Defendant Santos
Gómez-Encarnación was charged with both money laundering and
conspiracy to commit money laundering in violation of 18 U.S.C.
§§ 1956. Tried, convicted on both counts, and sentenced to fifty-
one months in prison, he now appeals both his conviction and his
sentence. For the following reasons, we affirm.
I.
In 2014, the Drug Enforcement Administration ("DEA")
began an investigation into potential bulk cash smuggling by Juan
Polanco-Ventura ("Polanco"). On April 28, 2014, the DEA
intercepted a call between Polanco and a co-conspirator, Daniel
Pilier, during which Polanco told Pilier that he was going to
Pilier's friend's house and Pilier told Polanco to pick up the
money. Shortly thereafter, Polanco called the defendant, Santos
Gómez-Encarnación, and asked if he could come by. An agent
observed Polanco go to Gómez-Encarnación's residence, where
Polanco received something through his car window from a person
later identified by the agent as co-defendant Pedro Trinidad-
Marine ("Trinidad"). Contemporaneously, Polanco called Pilier and
informed him that he had picked up the money and would wire him
some. Polanco was seen shortly thereafter near a money transfer
business, holding a piece of paper similar to a receipt.
The next month, agents intercepted several calls between
Polanco and an associate outside the United States during which
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the callers discussed the smuggling of currency to fund drug
shipments. The month after that, agents began surveilling Gómez-
Encarnación's residence, and on June 12, observed Trinidad pick up
Gómez-Encarnación at his home. On June 26, after receiving
intelligence that co-defendant Henry Carmona Reyes ("Carmona") was
coming to San Juan, agents established surveillance on Carmona and
observed him and Trinidad drive (with a few stops) to Gómez-
Encarnación's residence, where agents observed the three men
talking.
Agents also intercepted several phone calls between
Pilier and Gómez-Encarnación. On one call, Pilier told Gómez-
Encarnación that he needed "pigeon peas," which, an agent
testified, was a code phrase referring to drugs. Subsequent calls
used additional coded language referring to drug pricing. The
conversations also revealed that Gómez-Encarnación had changed
phone numbers, which, an agent would later testify at trial, is
typical in a drug trafficking operation.
On August 28, DEA agents arrested Gómez-Encarnación at
his residence. Gómez-Encarnación told agents about some currency
in a dresser, but denied the presence of firearms or drugs. A
search of the residence recovered marijuana, ketamine,
approximately $65,000 cash, and weapons including a Glock 21 pistol
that had been modified so as to be capable of firing in fully
automatic mode.
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In October 2014, Gómez-Encarnación was indicted for
conspiring to conduct financial transactions involving the
proceeds of specified unlawful activity, described in the
indictment as "the felonious manufacture, importation, receiving,
concealment, buying, selling, or otherwise dealing in controlled
substances." The indictment also charged the underlying
substantive crime of money laundering.
Gómez-Encarnación elected to go to trial. At trial,
agents testified as to the facts described above and the wiretaps
were introduced as evidence. Crucially, Polanco testified against
Gómez-Encarnación, stating that Polanco had made arrangements to
pick up $40,000 from Gómez-Encarnación, that Gómez-Encarnación
"gave" it to him outside Gómez-Encarnación's residence, and that
the money was derived from drug proceeds. Gómez-Encarnación was
convicted by a jury of both money laundering and conspiracy to
launder money. The district court denied his motion for acquittal
under Federal Rule of Criminal Procedure 29.
At sentencing, the court imposed a six-level enhancement
under U.S.S.G. § 2S1.1(b)(1) after finding that Gómez-Encarnación
knew that the crime involved drug trafficking proceeds. In
addition, the district court denied Gómez-Encarnación's request
for a reduction under U.S.S.G. § 3B1.2(a) or (b) for having only
a minor or minimal role in the offense. The district court imposed
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a fifty-one month sentence. Gómez-Encarnación now appeals his
conviction and sentence.
II.
Gómez-Encarnación contends that the district court erred
in: (1) denying his motion for acquittal on the basis that the
evidence was insufficient to support a conviction, (2) imposing a
six-level enhancement for the money laundering having involved the
proceeds of drug trafficking, and (3) denying him a reduction based
on his having a "minor or minimal" role in the offense. We take
each contention in turn.
A.
We review the denial of a Rule 29 motion for acquittal
de novo. United States v. Acevedo, 882 F.3d 251, 258 (1st Cir.
2018). Under such a review, "we must affirm unless the evidence,
viewed in the light most favorable to the government, could not
have persuaded any trier of fact of the defendant's guilt beyond
a reasonable doubt." Id.Gómez-Encarnación's primary argument is that Polanco's
claim that Gómez-Encarnación "gave" him the money rendered the
gist of Polanco's testimony necessarily unreliable because the
agent who observed the pick-up testified that Trinidad, not Gómez-
Encarnación, was the one who physically went to Polanco's car to
deliver the money. We do not see that potential inconsistency as
sufficient to vacate the conviction. The wiretap, the
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surveillance, and the agents' testimony directly corroborated
Polanco's claim that he arranged to get the cash from Gómez-
Encarnación at the place where Gómez-Encarnación resided. While
Polanco's testimony that Gómez-Encarnación "gave" him the money,
coupled with the agent's testimony that Trinidad physically
delivered it to the car, invited fair argument that Polanco was
not credible, such an argument fell far short of being so
compelling that no reasonable jury could rely on Polanco's
testimony in finding Gómez-Encarnación guilty beyond a reasonable
doubt. There are many ways to "give" money to someone, including
having an associate carry the cash from one's home to an individual
whom one knows is waiting outside for the cash. The important
point on which the agent and Polanco agreed was that Polanco
received something outside Gómez-Encarnación's residence after the
phone calls arranging the pick-up and before Polanco proceeded to
the money transfer business.
Gómez-Encarnación's second argument in support of his
challenge to the sufficiency of the evidence -- that no agent
observed him do anything illegal -- carries even less force. There
is simply no requirement that a government agent witness the
charged criminal act.
Finally, Gómez-Encarnación's claim that it could not be
known with any certainty that it was his voice on the wiretaps is
simply a veiled request to view the evidence in his favor, rather
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than in favor of the government as we are required to do at this
stage. A government agent who interviewed Gómez-Encarnación for
an hour after his arrest listened to the phone calls and identified
Gómez-Encarnación's voice on the recordings. Testimony to that
effect was enough to permit a jury to find that the voice belonged
to Gómez-Encarnación.
In sum, with the wiretaps, the agents' observations, the
items seized after Gómez-Encarnación's arrest, and the testimony
of Polanco, there was sufficient evidence for a conviction, so we
will not disturb the jury's verdict.
B.
Gómez-Encarnación also contests the application of a
six-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(1), which
applies where "the defendant knew or believed that any of the
laundered funds were the proceeds of, or were intended to promote
. . . an offense involving the manufacture, importation, or
distribution of a controlled substance." For a sentencing
enhancement to apply, the district court must find it supported by
a preponderance of the evidence. United States v. Lacouture, 835
F.3d 187, 189–90 (1st Cir. 2016). We review factual findings of
a sentencing court for clear error, and will not reverse absent "a
strong, unyielding belief that a mistake has been made." United
States v. Torres-Velazquez, 480 F.3d 100, 103 (1st Cir. 2007).
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Gómez-Encarnación was caught on wiretaps using drug-
related code language. An agent also testified that Gómez-
Encarnación's changing of cell phones was consistent with the
habits of drug traffickers. Furthermore, though the district court
sustained objections when Polanco testified that Gómez-Encarnación
was in the drug business, it admitted Polanco's testimony that
Polanco and several other co-conspirators were knowingly involved
in drug trafficking. From this testimony, a factfinder might infer
that another member of the conspiracy, Gómez-Encarnación, also
knew that the money laundering involved drug proceeds. Considering
cumulatively the testimony described above, we see no clear error
in the application of this enhancement.
C.
Finally, Gómez-Encarnación contends that the district
court should have granted him a two- or four-level reduction for
having a minor or minimal role in the offense, pursuant to U.S.S.G
§ 3B1.2(a) or (b). To qualify for this reduction, "the defendant
must satisfy a two-pronged test. First, he must demonstrate that
he is less culpable than most of those involved in the offense of
conviction. Second, he must establish that he is less culpable
than most of those who have perpetrated similar crimes." United
States v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005) (internal
citations omitted). Similar to the enhancement discussed supra,
the preponderance of the evidence standard governs the court's
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determination of whether a reduction is merited; however, the
burden to establish the appropriateness of such a reduction falls
on the defendant. See United States v. Cortez-Vergara, 873 F.3d
390, 393 (1st Cir. 2017). A district court's factual findings as
to a defendant's role in the offense are reviewed for clear error.
See United States v. Melendez-Rivera, 782 F.3d 26, 28–29 (1st Cir.
2015).
Gómez-Encarnación cannot overcome the clear error
hurdle. As the government correctly points out, Gómez-Encarnación
stored cash at his residence and used it as a pick-up point. One
hundred and five thousand dollars -- the sum of the money given to
Polanco and found at Gómez-Encarnación's residence -- is enough to
suggest that Gómez-Encarnación was well-trusted by the
conspirators with responsibility not easily granted to a minor
player in the conspiracy. And he discussed cash transfers and
drug supply over the phone with co-conspirators. On this record,
we cannot say that the district court clearly erred in denying his
request for a minor or minimal participant reduction.
III.
The evidence in this case was sufficient to support the
conviction, the sentencing enhancement, and the denial of the minor
or minimal role reduction. We therefore affirm.
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