United States v. Gomez-Castro ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2020
TENTH CIRCUIT
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-4090
v. (D.C. No. 2:16-CR-00267-DN-1)
(D. Utah)
LUIS GOMEZ-CASTRO,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HOLMES, MURPHY, and PHILLIPS, Circuit Judges.
Defendant-Appellant Luis Gomez-Castro appeals from his conviction and
sentence for possession of methamphetamine with intent to distribu doite, pursuant
to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Gomez-Castro raises three
arguments on appeal: first, that the district court committed three reversible errors in
its jury instructions; second, that the district court abused its discretion in denying
Mr. Gomez-Castro’s motion for a new trial; and third, that the district court erred in
imposing a sentence enhancement for obstruction of justice.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we
reject Mr. Gomez-Castro’s three arguments and affirm his conviction and sentence.
I
In early 2015, law enforcement agents of the Federal Bureau of Investigation
(“FBI”) began investigating Mr. Gomez-Castro—a resident of North Salt Lake,
Utah—for suspected drug trafficking. As part of the investigation, a confidential
informant named Reuban Morales provided FBI agents with Mr. Gomez-Castro’s
phone number. On August 14, 2015, the FBI obtained authorization to install a
thirty-day wiretap on Mr. Gomez-Castro’s phone.
The wire intercepted a series of twenty-nine phone calls by Mr.
Gomez-Castro from September 8 to September 12, 2015, in which he arranged to
purchase methamphetamine from a Mr. Fernando Lopez and another suspected
supplier. At one point during his calls to Mr. Lopez, Mr. Gomez-Castro indicated
that a load of methamphetamine was soon headed to the local area. Based on that
statement, FBI agents made plans to seize the drugs and arrest Mr. Gomez-Castro.
The agents enlisted the confidential informant, Mr. Morales, to help. At the FBI’s
direction, Mr. Morales ordered methamphetamine from Mr. Gomez-Castro.
On the morning of September 12, 2015, Mr. Gomez-Castro made several calls
to the suspected supplier and arranged to meet him at a house early that afternoon.
Mr. Gomez-Castro also called Mr. Morales and told him to come to his apartment.
Not long after he arrived, both men left the apartment complex and drove separately
2
to meet the suspected supplier. Two local police officers followed them to the
meeting place. When they arrived at the house, they walked down a short driveway
and met someone standing outside. The police officer surveilling the men did not
want to be spotted, so he drove past the house and parked in a location where he
could see Mr. Gomez-Castro’s car but not see what exactly the three individuals
were doing in the driveway. Nonetheless, after a fairly short period of time, the
police officer saw Mr. Gomez-Castro and Mr. Morales walk back toward their
vehicles and drive away separately from the house.
At approximately 2:00 p.m. on September 12, 2015, law enforcement officers
executed a search warrant for Mr. Gomez-Castro’s apartment. When they arrived,
the officers found Mr. Gomez-Castro flushing methamphetamine down the toilet.
Nonetheless, they managed to recover about forty-two grams of the drug. After his
arrest, Mr. Gomez-Castro offered to work as an FBI informant. FBI agents initially
agreed to this proposal, but within a few months they ended the arrangement,
purportedly because Mr. Gomez-Castro put “very minimal effort” into it. R., Vol.
III, at 356 (Trial Tr., dated Oct. 25, 2017).
II
A
On June 1, 2016, the government indicted Mr. Gomez-Castro on one count of
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). The indictment also alleged that Mr. Gomez-Castro committed this
3
drug-trafficking offense under an aiding-and-abetting theory, pursuant to 18 U.S.C.
§ 2.
At trial, Mr. Gomez-Castro testified that his girlfriend, Ms. Elizabeth
Figueroa, had become an informant for the Ogden, Utah Police Department to “work
off her [drug-related] charges.” R., Vol. III at 388 (Trial Tr., dated Oct. 25, 2017).
To help Ms. Figueroa do so, Mr. Gomez-Castro claimed that he tried to obtain
information on “people who had something so that I could tell her and she could
give [the Ogden, Utah police] the information.” Id. at 388. Mr. Gomez-Castro
further claimed that he had also previously worked directly with the Ogden Police
Department as an informant, although not at the time of his arrest. Still, Mr.
Gomez-Castro testified that he thought that by arranging for a drug deal for Mr.
Morales he could “get involved with people who had things so that I could find out
who had them so that I could help [Ms. Figueroa].” Id. at 390.
Mr. Gomez-Castro also testified that Mr. Morales planted the
methamphetamine in his apartment, and that he did not know it was there until the
police arrived to execute the search warrant. According to Mr. Gomez-Castro, after
meeting with the suspected supplier he drove around for twenty minutes “killing
time” while Mr. Morales returned to the apartment and left a box with Ms. Figueroa
without explanation. Id. at 390–91. Mr. Gomez-Castro insisted that once he
returned home he repeatedly tried to call Mr. Morales, but he never answered, and
4
that he only opened the box—which contained the methamphetamine—once he saw
the police arriving.
On cross-examination, when questioned about his alleged law enforcement
informant handler in the Ogden Police Department, Mr. Gomez-Castro could only
remember his first name, “Adam.” Id. at 417. When asked about the names of the
people whose contact information he provided to Adam, he was unable to remember
any, other than an “Armando.” Id. at 417–18. He was also questioned about his
interview with an FBI agent on September 12 soon after his arrest. In particular,
Mr. Gomez-Castro was asked why he did not tell the FBI agent that Mr. Morales
had dropped off the methamphetamine in a box while he was gone, or that he was
trying to help Ms. Figueroa work off charges from the Ogden police. Mr. Gomez-
Castro replied, “[the FBI agent] was the one that was asking the questions there, and
I couldn’t do anything. He was the one asking the questions, and I just had to
answer.” Id. at 419–20.
The government called three witnesses in rebuttal. The first witness was an
Ogden Police Department lieutenant who testified that he had never worked with a
detective named “Adam,” and that he knew of no detectives named “Adam” on the
Ogden Police Department’s Weber-Morgan Narcotics Strike Force, a
multi-jurisdictional task force in Utah devoted to investigating drug offenses. He
further testified that based on his review of the written records of informants
working for the Crime Reduction Unit and the Weber-Morgan Narcotics Strike
5
Force, no records indicated that either Mr. Gomez-Castro or Ms. Figueroa had been
officially signed up as informants. However, the lieutenant acknowledged that a
person could work as an informant without being signed up formally.
The government also called a Salt Lake City police officer who had arrested
Ms. Figueroa for obstruction of justice and possession of methamphetamine in
October 2014. The officer could not recall if Ms. Figueroa was ever officially
signed up as an informant, but when asked if Ms. Figueroa ever worked for him the
officer replied, “she never did anything that we would consider [] working for us.”
R., Vol. III, at 450 (Trial Tr., dated Oct. 26, 2017).
Finally, the government called the FBI agent leading the investigation to
testify about the numerous drug-related phone calls made by Mr. Gomez-Castro and
intercepted by the wiretap. Moreover, the agent testified that he reviewed Mr.
Gomez-Castro’s phone records and found no evidence that Mr. Gomez-Castro had
tried unsuccessfully to call Mr. Morales numerous times after purportedly
discovering the box left at his apartment. The agent also said that when he
interviewed Mr. Gomez-Castro after his arrest on September 12, Mr. Gomez-Castro
made no mention that he had worked, or was working, as an informant for the
Ogden Police Department.
6
B
Partially at issue in this appeal are three instructions given to the jury
throughout Mr. Gomez-Castro’s trial. As a preliminary matter, we summarize each
set of instructions here.
First, throughout the trial proceedings, the district court repeatedly instructed
the jurors that they could discuss the evidence before formal deliberations began as
long as they were all together in the jury room and no one else was present. For
example, in its written preliminary jury instructions, the court informed the jurors:
[U]ntil this trial is over, the only time that you may discuss the
evidence is when you are all together so that (1) each of you is
present during the discussion, (2) in the jury room, (3) with no one
else present. If one of those three conditions is not met, you may
not discuss the case. That means that under any other
circumstances you are not to discuss the case with fellow jurors or
anyone else or permit anyone to discuss it with you.
Supp. R., Vol. VI, at 43 (Prelim. Jury Instrs., Instr. No. 13, dated Oct. 24, 2017). At
least twice throughout the trial, the district court judge gave similar instructions to
the jurors. Mr. Gomez-Castro never objected to the instructions during his trial.
Second, in connection with the allegation that Mr. Gomez-Castro aided and
abetted the possession of methamphetamine with the intent to distribute, the district
court provided the following final instructions to the jury:
You may also find the defendant guilty if you find he aided and
abetted another in the commission of the crime charged. Aiding
and abetting is simply another way of committing the offenses
charged. The aiding and abetting statute, Section 2(a) of Title 18
of the United States Code provides that: [w]hoever commits an
7
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as
a principal.
Supp. R., Vol. VI, at 71 (Final Jury Instrs., Instr. No. 38, dated Oct. 17, 2017). At
trial, defense counsel lodged several general objections to the court’s aiding-and-
abetting instructions but did not specify the grounds for the objection.
Finally, the district court supplied the following instructions on the elements
of constructive possession for Mr. Gomez-Castro’s charge for possession of
methamphetamine with intent to distribute:
As I have instructed you, you must determine whether the
defendant “possessed” the controlled substance. The legal concept
of possession may differ from the everyday usage of the term, so
I will explain it in some detail.
Actual possession is what most of us think of as possession; that
is having physical custody or control of an object. For example, if
you find that the defendant had the controlled substance on the
defendant’s person, you may find that the defendant had
possession of the controlled substance. However, a person need
not have actual physical custody of an object in order to be in
legal possession of it. If an individual has the ability to exercise
substantial control over an object that he does not have in his
physical custody, then he is in possession of that item.
Possession of a controlled substance cannot be found solely on the
grounds that the defendant was near or close to the controlled
substance. Nor can it be found simply because the defendant was
present at a scene where the controlled substance was involved, or
solely because the defendant associated with a person who does
control the controlled substance or the property where the
controlled substance is found. However, these factors may be
considered by you, in connection with all other evidence, in
making your decision whether the defendant possessed the
controlled substance.
8
Supp. R., Vol. VI, at 63 (Final Jury Instrs., Instr. No. 30, dated Oct. 17, 2017). Mr.
Gomez-Castro did not object to these instructions during his trial.
C
On October 26, 2017, a jury found Mr. Gomez-Castro guilty of possession of
methamphetamine with intent to distribute. Sometime in mid-November 2017,
before his sentencing, Mr. Gomez-Castro claimed that he finally remembered, for
the first time, the name of the Ogden Police Department officer for whom he had
worked as an informant: “Don Jensen.” R., Vol. I., at 154 (Mot. for New Trial,
dated Jun. 11, 2018). An investigator later tracked down a “Don Johnson,” a former
Weber-Morgan Narcotics detective in the Ogden Police Department. R., Vol. I, at
139 (Decl. of Craig Watson, dated May 10, 2018). Mr. Johnson indicated that he
had been a member of the Weber-Morgan Narcotics Task Force in 2013 and 2014,
and he recalled having used an informant during that period by the name of Luis
Castro. The investigator sent a picture of Mr. Gomez-Castro to Mr. Johnson, and
Mr. Johnson confirmed that he had used the person in the photo as a confidential
source.
Mr. Gomez-Castro’s sentencing hearing centered in part on his alleged work
as an informant for Mr. Johnson and the Ogden Police Department. The presentence
investigation report (“PSR”) recommended a two-level enhancement in Mr.
Gomez-Castro’s Guidelines offense level. With this enhancement, his total advisory
9
Guidelines sentencing range was 151 to 188 months of imprisonment.1 The
recommended sentence enhancement was based on the prosecution’s assertion that
Mr. Gomez-Castro had committed perjury at trial—namely, by falsely claiming to
have worked as a police informant.
Mr. Gomez-Castro objected to the PSR’s recommended enhancement and
indicated that the newly discovered Mr. Johnson could confirm his claims. In
response, the PSR stated that Mr. Gomez-Castro had testified at trial that he was
working for an officer named “Adam,” not “Don.” Moreover, the PSR concluded
that even if the court were to find that Mr. Gomez-Castro was not deliberately
untruthful on this matter, the court could still determine that an
obstruction-of-justice enhancement was appropriate in light of other aspects of Mr.
Gomez-Castro’s trial testimony. At the sentencing hearing, Mr. Johnson testified
that Mr. Gomez-Castro began working for him as an informant sometime around
March 2014 and continued his work for somewhere between six months to a year.
Mr. Johnson further testified that although, ideally, task force members formally
signed up informants, it was not uncommon for them to fail to do so.
The district court concluded that Mr. Gomez-Castro was subject to the
two-level enhancement for obstruction of justice. The court reasoned that the
1
The U.S. Probation Office used the 2016 edition of the Guidelines in
calculating Mr. Gomez-Castro’s advisory sentencing range. Mr. Gomez-Castro does not
challenge this decision. Therefore, we also rely on this edition of the Guidelines in
resolving this appeal.
10
testimony presented at the hearing established that Mr. Gomez-Castro never had any
formal arrangement with the Weber-Morgan Task Force, that he had no formal
authorization to purchase drugs, that any relationship he had with Don Johnson
terminated well before the transaction in the current case, and that there was no
agent or officer named “Adam” associated with the Task Force—despite Mr.
Gomez-Castro’s various claims at trial to the contrary. The court sentenced Mr.
Gomez-Castro to a term of 151 months’ imprisonment.
Mr. Gomez-Castro then filed a motion for a new trial. He argued that his
recollection of Mr. Johnson’s name after trial was newly discovered evidence
justifying a new trial under Federal Rule of Criminal Procedure 33. The
government countered that a new trial was not warranted because the sudden
recollection of Mr. Johnson’s name after trial did not make it newly discovered
evidence. Moreover, the government argued that Mr. Johnson’s testimony would
not have changed the outcome of the trial because it merely confirmed several
dispositive facts: that on September 12, 2015, Ms. Figueroa was not working off
charges, that Mr. Gomez-Castro was not working for Mr. Johnson and had not
worked for him for more than a year, that Mr. Gomez-Castro had never been
authorized by Mr. Johnson to directly participate in drug deals, and that Mr.
Gomez-Castro never worked for a detective named “Adam.”
On July 6, 2018, the district court denied Mr. Gomez-Castro’s motion for a
new trial “for the reasons stated in the Government’s Response.” R., Vol. I, at 242
11
(Order Denying Mot. for New Trial, filed July 6, 2018). Mr. Gomez-Castro then
filed this timely appeal from his conviction and sentence.
III
Mr. Gomez-Castro raises three claims in his appeal. First, he argues that
three jury instructions from the district court amounted to reversible error:
specifically, the court’s instruction to the jurors authorizing them to discuss the
evidence before formal deliberations, and its instructions concerning aiding-and-
abetting liability and constructive possession—both of which allegedly omitted
required intent elements. Second, he contends that the district court abused its
discretion in denying his motion for a new trial. Finally, he insists that the district
court erred in imposing a sentence enhancement for obstruction of justice. We
consider—and reject—each of Mr. Gomez-Castro’s claims.
A
Mr. Gomez-Castro first argues that the three jury instructions were erroneous.
We address each instruction individually. But, we begin by discussing the standard
of review that applies to all three jury-instruction claims.
1
Ordinarily, we “review de novo the jury instructions as a whole . . . to
determine if they accurately state the governing law and provide the jury with an
accurate understanding of the relevant legal standards and factual issues in the
case.” United States v. Vernon, 814 F.3d 1091, 1103 (10th Cir. 2016) (quoting
12
United States v. Richter, 796 F.3d 1173, 1185 (10th Cir. 2015)). Yet, as we discuss
below, Mr. Gomez-Castro failed to properly object during his trial to all three
instructions that he challenges here on appeal. That is, he failed to “inform the
court of [his] specific objection” before the jury retired to deliberate. FED . R. CRIM .
P. 30(d). Therefore, we shall review any alleged error in the instructions under the
plain error standard of review. See United States v. Visinaiz, 428 F.3d 1300, 1308
(10th Cir. 2005) (“When no objection to a jury instruction was made at trial, the
adequacy of the instruction is reviewed de novo for plain error.”); see also United
States v. Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008) (noting that “a generalized
objection to an instruction is insufficient to preserve a specific objection on appeal”
and is “reviewed only for plain error”).
A party seeking relief from a plain error must show “(1) an error, (2) that is
plain, which means clear or obvious under current law, and (3) that affects
substantial rights.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)
(quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011)). “An error
seriously affects the defendant’s substantial rights, as those terms are used in the
plain-error test, when the defendant demonstrates ‘that there is a reasonable
probability that, but for the error claimed, the result of the proceeding would have
been different.’” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir.
2014) (quoting United States v. Mendoza, 698 F.3d 1303, 1310 (10th Cir. 2012)).
13
If these three factors are met, a court may correct the error on appeal if “it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir. 2011); see also United
States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009) (“Under the plain error
standard, ‘even if a defendant demonstrates an error that is plain, we may only take
corrective action if that error not only prejudices the defendant’s substantial rights,
but also seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” (quoting United States v. Rivas-Macias, 537 F.3d 1271, 1281 (10th
Cir. 2008))).
Mr. Gomez-Castro concedes that he failed to object to two of the
instructions—the one authorizing the jurors to discuss the evidence before formal
deliberations and the one addressing constructive possession. At trial, Mr.
Gomez-Castro lodged a general objection to the instructions on aiding-and-abetting
liability. Yet he never specified “the grounds for the objection.” FED . R. CRIM . P.
30(d). “Because the purpose of the objection is to give the court an opportunity to
correct any mistake before the jury enters deliberations, an excessively vague or
general objection to the propriety of a given instruction is insufficient to preserve
the issue for appeal.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir.
1999) (citation omitted).
14
Accordingly, in light of Mr. Gomez-Castro’s failure to properly object at trial
to the three jury instructions at issue, we review all three instructions under the
plain error standard of review.
2
Mr. Gomez-Castro first contends that the district court committed reversible
plain error when it repeatedly instructed jurors that they could talk about the
evidence in the case before formal deliberations. We disagree. Instead, we
conclude that this claim fails to satisfy the second prong of plain-error review,
because any alleged error in these instructions was not “clear or obvious under
current law.” McGehee, 672 F.3d at 876.
At several points during the proceedings the district court informed the jurors
that they could discuss the trial evidence before formal deliberations had
commenced, so long as they were all together in the jury room and no one else was
present. In its written preliminary jury instructions, the court instructed the jurors:
[U]ntil this trial is over, the only time that you may discuss the
evidence is when you are all together so that (1) each of you is
present during the discussion, (2) in the jury room, (3) with no one
else present. If one of those three conditions is not met, you may
not discuss the case. That means that under any other
circumstances you are not to discuss the case with fellow jurors or
anyone else or permit anyone to discuss it with you.
Supp. R., Vol. VI, at 42 (Prelim. Jury Instrs., Instr. No. 13, dated Oct. 24, 2017).
Later, during the trial, the district court judge twice reiterated these instructions in
similar terms. For example, on the second day of trial the district court judge said:
15
Remember you may not discuss the evidence in the case, and you
don’t have any evidence yet so don’t worry about this right now.
But you have to be present in the jury room, everybody all present,
no one else present, door closed, then you can discuss the
evidence.
Supp. R., Vol. III, at 146 (Trial Tr., dated Oct. 25. 2017); see also id. at 294–95
(Trial Tr., dated Oct. 25 2017).
Mr. Gomez-Castro argues that these instructions are “contrary to longstanding
and well-established law.” Aplt.’s Opening Br. at 17. Yet he cites no Tenth Circuit
or Supreme Court precedent to this effect. Instead, in his opening brief, he cites
only one case from another circuit court, decided more than six decades ago, that
merely notes “the generally accepted principle that it is improper for jurors to
discuss a case prior to its submission.” Winebrenner v. United States, 147 F.2d 322,
329 (8th Cir. 1945).
A reversible plain error must be plain, i.e., “clear or obvious under current
law.” McGehee, 672 F.3d at 876. Mr. Gomez-Castro has failed to make this
showing. He has not provided—nor have we uncovered—any Tenth Circuit or
Supreme Court decision that holds that a district court is prohibited from permitting
jurors to discuss evidence before formal deliberations, as the court instructed here.2
2
We note that at least one prior panel of this court, in an unpublished
opinion, has recently reached the same conclusion. See United States v. Waldron, 756 F.
App’x 789, 800 (10th Cir. 2018) (“No Tenth Circuit or Supreme Court precedent has held
that a district court commits error by allowing jurors to discuss a case before deliberations
begin.”)
16
Yet, ordinarily, for an error to be “contrary to well-established law, either the
Supreme Court or this court must have addressed the issue.” United States v.
DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (quoting United States v.
Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011)). Thus, even if the jury
instructions here were erroneous, that error was hardly plain.
3
Mr. Gomez-Castro also challenges the district court’s jury instructions on
aiding-and-abetting liability—specifically, the court’s failure to instruct the jury
concerning the requisite intent for such liability. We decline also to correct this
error, however, because we do not believe—under plain error review—that Mr.
Gomez-Castro has demonstrated that the error affected his “substantial rights.”
McGehee, 672 F.3d at 876.3
3
When reviewing challenges to jury instructions that were forfeited at trial
(that is, not raised at trial through inadvertence or neglect) involving claims that the
instructions omit a requisite element, we repeatedly have focused on the third prong
of plain error review—that is, the question of whether the error affected the
defendant’s substantial rights. See, e.g., United States v. Giannukos, 908 F.3d 649,
654, 658 (10th Cir. 2018) (holding that by failing to properly instruct the jury on
the definition of constructive possession “the district court erred and that error was
plain” and “conclud[ing] that the erroneous jury instruction affected [the
defendant’s] substantial rights”); United States v. Kalu, 791 F.3d 1194, 1204 (10th
Cir. 2015) (holding that the district court’s failure to instruct the jury on the intent
element of fraud was “error [that] was plain” but that the defendant “has not shown
the error affected his substantial rights”); see also United States v. Campbell, 763
Fed. App’x 745, 748–49 (2019) (unpublished); United States v. Scott, 747 F. App’x
728, 731 (2018) (unpublished); United States v. Martinez, 749 F. App’x 698, 708
(2018) (unpublished). For example, in the foregoing cited cases, we found that the
omission of an element amounted to clear or obvious error, and our decisions have
17
We have made it clear before that aiding and abetting a drug possession with
intent to distribute requires proof that “the defendant: (1) ‘willfully associate[d]
with the criminal venture,’ and (2) ‘aid[ed] such venture through affirmative
action.’” United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004)
(quoting United States v. Jones, 44 F.3d 860, 869 (10th Cir. 1995)). That is, “[t]he
turned on the third prong of the plain error analysis. And the same is true here with
respect to Mr. Gomez-Castro’s remaining two instructional challenges.
Lastly, though Mr. Gomez-Castro does not cite to the case—much less argue
that it is applicable here—we pause for clarity’s sake to distinguish this situation
from the one found in Neder v. United States, 527 U.S. 1 (1999). In Neder, the
Supreme Court held that, though it is a well-established matter of constitutional
consequence, “the omission of an element is an error that is subject to
harmless-error analysis.” Id. at 15. In the instance of such an omission, the
question is “whether it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” Id. at 15 (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)). And there can be no doubt that
the burden to establish harmlessness rests with the government. See United States
v. Rivera, 900 F.2d 1462, 1470 n.5 (10th Cir. 1990) (“The prosecution bears the
burden of proving that a constitutional error was harmless beyond a reasonable
doubt.”); see also Chapman, 386 U.S. at 24 (noting that the presence of
“constitutional error . . . casts on someone other than the person prejudiced by it a
burden to show that it was harmless.”). But, importantly, the defendant in Neder
objected at trial to the jury instructions that omitted the requisite materiality
element of his alleged crimes. See Neder, 527 U.S. at 6 (“In accordance with
then-extant Circuit precedent and over Neder’s objection, the District Court
instructed the jury that, to convict on the tax offenses, it ‘need not consider’ the
materiality of any false statements.” (emphasis added)). Here, however, Mr.
Gomez-Castro failed to properly object at trial to any of the three purportedly
deficient jury instructions. For that reason, we review his challenges to the jury
instructions under the plain error standard of review. Consequently, on the
question of prejudice, it is Mr. Gomez-Castro’s burden to establish under the third
prong of the plain error standard that any error affected his substantial
rights—rather than the government’s burden to establish that any error is harmless.
18
government must prove, through direct or circumstantial evidence, more than mere
presence at the scene of the crime even if coupled with knowledge that the crime is
being committed.” Jones, 44 F.3d at 869. More specifically, “some showing of
intent to further the criminal venture must be introduced at trial.” Delgado-Uribe,
363 F.3d at 1084.
Here, the government appropriately concedes that the jury instructions were
clearly or obviously erroneous (i.e., plainly erroneous) for not including an intent
requirement. Therefore, we move to the third prong of the plain error standard of
review: whether the error affected Mr. Gomez-Castro’s substantial rights. Mr.
Gomez-Castro must show that this error was “prejudicial,” such that it “affected the
outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,
734 (1993). He must demonstrate “a reasonable probability that but for [the error
claimed], the result of the proceeding would have been different.” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). Mr. Gomez-Castro argues that the error as to the aiding-and-
abetting instruction “lessen[ed] the government’s burden of proof and effectively
depriv[ed] him of a defense to which he was entitled and which was supported by
his own testimony.” Aplt.’s Opening Br. at 22. Thus, he insists that if the court had
included the intent requirement in its instructions, there is a reasonable probability
he would not have been convicted.
19
The government counters by pointing to the extensive evidence presented at
trial to establish that Mr. Gomez-Castro “participated in the criminal activity to
make it succeed, and not to obtain useful information for law enforcement.”
Aplee.’s Resp. Br. at 36. Among the significant pieces of evidence that the
government highlights are the following: twenty-nine phone calls Mr. Gomez-Castro
placed between September 8 and September 12, 2015, arranging drug deals among
Mr. Morales, Mr. Lopez, and his suspected supplier; testimony from law
enforcement officers that Mr. Gomez-Castro and Mr. Morales, after leaving the
supplier’s home on September 12, arrived back at Mr. Gomez-Castro’s apartment at
the same time—undercutting Mr. Gomez-Castro’s testimony that Mr. Morales,
unbeknownst to him, went to his apartment and dropped off the box of
methamphetamine; the fact that Mr. Gomez-Castro initially could not remember any
information about his supposed law enforcement informant handler; and the fact that
Mr. Gomez-Castro, by his own admission, last assisted local police as an informant
in 2014, well before the drug deal at issue in September 2015. In light of all this
evidence, the government insists that proper instructions on this issue “would not
have made any difference.” Aplee.’s Resp. Br. at 36
We likewise conclude that Mr. Gomez-Castro has not established that the
instructional error affected his substantial rights. The overwhelming balance of the
aforementioned evidence supports the conclusion that Mr. Gomez-Castro “willfully
20
associate[d] with the criminal venture” and “aid[ed] such venture through
affirmative action.” Delgado-Uribe, 363 F.3d at 1084.
Mr. Gomez-Castro insists that all of the conduct in question just as easily
confirms his claim that he acted only with the intent of gathering information to
pass along to law enforcement authorities. We disagree. His own conduct and
testimony belies that claim. His testimony that he had repeatedly tried to call Mr.
Morales when he saw the box in his apartment is contradicted by his own phone
records from that day. And he flushed the methamphetamine in the box down the
toilet when the police first arrived at his residence—suggesting an intent to conceal
or destroy evidence of criminal wrongdoing, rather than an intent to make such
evidence available to law enforcement. Cf. United States v. Williams, 985 F.2d 749,
753 (5th Cir. 1993) (“Evidence of the defendants’ concerted effort to dispose of the
cocaine supports a reasonable inference that all three men both associated and
participated in possessing the drugs.”). Furthermore, at no point during his
discussion with the FBI agent on September 12 did he mention his supposed work as
local police informant. Even assuming that Mr. Gomez-Castro’s exculpatory
explanations for such damning evidence are plausible, they do not convince us that
there is a reasonable probability—that if the jury had been properly instructed
concerning aiding-and-abetting liability—the result of his trial would have been
different.
21
In sum, given the evidence presented by the government at trial, Mr.
Gomez-Castro simply cannot adequately establish the third prong of plain error
review.
4
Lastly, Mr. Gomez-Castro challenges the district court’s jury instruction on
constructive possession for its failure to include intent to possess as a required
element. But, we again conclude that Mr. Gomez-Castro has not shown that this
error affected his substantial rights.
The district court instructed the jury that constructive possession exists when
a person “has the ability to exercise substantial control over an object that he does
not have in his physical custody.” Supp. R., Vol. VI, at 63 (Final Jury Instrs., Instr.
No. 30, dated Oct. 17, 2017). Yet, the United States Supreme Court has expressly
held that “[c]onstructive possession is established when a person . . . has the power
and intent to exercise control over the object.” Henderson v. United States, 135
S.Ct. 1780, 1784 (2015) (emphasis added). We, too, have expressly recognized that
after the Supreme Court’s holding in Henderson, “constructive possession requires
both power to control an object and intent to exercise that control.” United States v.
Little, 829 F.3d 1177, 1182 (10th Cir. 2016) (emphasis added). The government
rightly concedes that the district court’s instructions were clearly or obviously
erroneous in omitting this necessary component. But, at trial Mr. Gomez-Castro did
22
not object to these instructions on the ground that they omitted the necessary intent
element.
As a result, we resolve this challenge under the third prong of the plain error
standard. Mr. Gomez-Castro contends that the erroneous instruction “may very well
have affected the jury’s verdict.” Aplt.’s Reply Br. at 10. He argues that if the
district court had properly instructed the jury, the jurors might have believed his
testimony that he did not know about the methamphetamine in his apartment, and
thus did not intend to possess it. See Aplt’s Opening Br. at 24.
In response, the government directs us to United States v. Simpson, 845 F.3d
1039 (10th Cir. 2017). In that case, we faced essentially the same issue as here:
whether the omission of the requisite intent element—that Henderson prescribes—in
jury instructions on constructive possession was reversible plain error. In Simpson,
we concluded that the omission would not have affected the outcome of the
case—and thus, the challenge failed under the third prong of plain error review. As
we reasoned in Simpson:
For Count 1, the jury found not only that Mr. Simpson had
possessed cocaine, but also that he had intended to distribute the
cocaine. Mr. Simpson could intend to distribute the cocaine only
if he intended to possess it, for he could not distribute something
that he didn’t have. See United States v. Paredes- Rodriguez, 160
F.3d 49, 55 (1st Cir. 1998) (“[I]t simply makes no sense to assert
that the same jury that found that [the defendant] intended to
distribute the cocaine could have simultaneously found that he did
not intend to possess it.”). Thus, we know that the instructional
error did not affect the outcome on the charge of possession with
intent to distribute.
23
Because the jury found Mr. Simpson guilty on this count, we know
that the jury would have found that Mr. Simpson had intended to
possess the cocaine. In these circumstances, the outcome on
Count 1 would likely have stayed the same with a legally correct
instruction on constructive possession. Thus, we reject the
challenge to Count 1 under the third element of the plain-error
test.
Simpson, 845 F.3d at 1060.
We agree with the government that the logic of our decision in Simpson
resolves the present jury instruction challenge. By convicting Mr. Gomez-Castro of
possession with intent to distribute, the jury necessarily found that he intended to
distribute the methamphetamine. And Mr. Gomez-Castro could only have intended
to distribute the methamphetamine, if he also had an intention of possessing it, “for
he could not distribute something that he didn’t have.” Simpson, 845 F.3d at 1060.
Mr. Gomez-Castro makes no serious attempt to distinguish Simpson, nor do we see
how he could.
In short, because the jurors found Mr. Gomez-Castro guilty of possessing
methamphetamine with the intent to distribute, they would have necessarily found
that he also intended to possess the methamphetamine under a proper instruction on
constructive possession. Therefore, Mr. Gomez-Castro simply cannot show “a
reasonable probability that but for the error claimed, the result of the proceeding
would have been different.” Dominguez Benitez, 542 U.S. at 82.
24
B
Mr. Gomez-Castro next argues that the district court abused its discretion in
denying his motion for a new trial. Under the Federal Rules of Criminal Procedure,
a defendant may file a motion for a new trial on the grounds of “newly discovered
evidence.” FED . R. CRIM . P. 33(b)(1). A district court may vacate a judgment and
grant a new trial “if the interest of justice so requires.” FED . R. CRIM . P. 33(a).
Here, we conclude that the alleged ground for Mr. Gomez-Castro’s motion for a new
trial—his recollection of the identity of Mr. Johnson—does not amount to
permissible “newly discovered evidence” under Federal Rule of Criminal Procedure
33(b)(1).
We review a district court’s denial of a motion for a new trial “for an abuse of
discretion.” United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999). An
abuse of discretion occurs only if a decision is “based on an erroneous conclusion of
law, a clearly erroneous finding of fact[,] or a manifest error in judgment.” United
States v. Austin, 231 F.3d 1278, 1282 (10th Cir. 2000) (quoting Webb v. ABF
Freight Sys., Inc., 155 F.3d 1230, 1246 (10th Cir. 1998)).
We have held that five requirements must be met before receiving a new trial
on the grounds of newly discovered evidence. A Rule 33 movant in Mr.
Gomez-Castro’s position must show:
(1) the evidence was discovered after trial; (2) the failure to
discover the evidence was not caused by the defendant’s lack of
diligence; (3) the new evidence is not merely impeaching; (4) the
25
new evidence is material to the principal issues [] involved; and
(5) the new evidence would probably produce an acquittal in a
new trial.
United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir. 2000). Mr. Gomez-Castro
has seemingly met the first, third, and fourth requirements; only the second and fifth
requirements are truly at issue. We conclude that Mr. Gomez-Castro can satisfy
neither.
Mr. Gomez-Castro argues that his failure to recall Mr. Johnson’s name was
not caused by his own lack of diligence for two reasons. First, he claims that it had
been approximately three years since he had worked as an informant for Mr.
Johnson, and, consequently, it was reasonable that he could not remember his name
before the trial ended. Second, he contends that “[i]t was the prosecution’s rebuttal
case that made the newly discovered evidence so necessary,” especially the police
lieutenant’s testimony that drew into question Mr. Gomez-Castro’s claim that he had
worked as an informant. Aplt.’s Opening Br. at 38.
We find neither reason persuasive. Mr. Gomez-Castro does not contend that
he did not have sufficient time to prepare for trial. And, given that his defense
turned in substantial part on his alleged cooperation with law enforcement, we are
hard pressed to see how Mr. Gomez-Castro exercised due diligence in only recalling
of his law enforcement handler after the trial. Moreover, Mr. Gomez-Castro’s
motion for a new trial makes clear that he had investigative resources at his
disposal, so—even though his work for law enforcement may have occurred some
26
three years prior—he was not obliged to rely on the specifics of his memory alone in
discovering the identity of his handler.
His second argument fails for a related reason. It was not—as Mr. Gomez-
Castro would have it—the government’s rebuttal witness, the Ogden Police
lieutenant, that “made the newly discovered evidence so necessary,” Aplt.’s
Opening Br. at 38, but rather the nature of his defense itself, which relied on his
prior cooperation with law enforcement. Contrary to Mr. Gomez-Castro’s assertion,
this lieutenant did not foreclose the possibility that an informant could have worked
for the Ogden police without being formally signed up as such. And, therefore, the
lieutenant’s testimony did not have the necessary effect of communicating to the
jury that Mr. Gomez-Castro was “lying,” Aplt.’s Opening Br. at 38, when he
testified about his cooperation. Nor did the government’s rebuttal create some new
need on Mr. Gomez-Castro’s part to identify his law enforcement handler. Thus, in
our view, Mr. Gomez-Castro fails to show that his inability to remember Mr.
Johnson’s name before trial was not caused by his own “lack of diligence.”
Pearson, 203 F.3d at 1274.
Moving to the fifth requirement, we seriously doubt that the new evidence
would probably produce an acquittal in a new trial. Mr. Gomez-Castro insists that
the government’s case relied heavily on suggesting that he was untruthful about his
work as an informant and, thus, also untruthful about his purported motives for
engaging in the drug-related activity. As a result, Mr. Gomez-Castro claims Mr.
27
Johnson’s testimony “would have so altered at least one juror’s assessment of Mr.
Gomez-Castro’s credibility that the [trial’s] outcome would have been different.”
Aplt.’s Opening Br. at 40.
But this argument simply ignores the abundance of other
evidence—previously discussed at length—that casts serious doubt on the credibility
of Mr. Gomez-Castro’s claim that he was simply gathering information for local
police. Therefore, we conclude that the district court did not abuse its discretion in
denying Mr. Gomez-Castro’s motion for a new trial.
C
Finally, Mr. Gomez-Castro argues that the district court erred in imposing a
two-level sentence enhancement for obstruction of justice. For reasons discussed
below, we conclude that Mr. Gomez-Castro forfeited this objection by failing to
raise it properly before the district court. Thus, we shall review this decision under
the plain error standard of review; again, this means that Gomez-Castro must
initially show “(1) an error, (2) that is plain, which means clear or obvious under
current law, and (3) that affects substantial rights.” McGehee, 672 F.3d at 876.
Viewed under this standard, we hold that the district court did not commit an error
that was “clear or obvious under current law” when it imposed a two-level sentence
enhancement for obstruction of justice. Id. at 876.
Section 3C1.1 of the Sentencing Guidelines requires a two-level upward
adjustment to a defendant’s offense level “[i]f the defendant willfully obstructed or
28
impeded, or attempted to obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1.
Perjury can be the basis for such an enhancement. Id. § 3C1.1 cmt. 4(B); see also
United States v. Dunnigan, 507 U.S. 87, 92 (1993) (“[T]he phrase ‘impede or
obstruct the administration of justice’ includes perjury, and the commentary to
§ 3C1.1 is explicit in so providing.”); United States v. Copus, 110 F.3d 1529, 1536
(10th Cir. 1997) (“Obstruction of justice includes the offering of perjured testimony
at trial.”). A defendant commits perjury for the purposes of § 3C1.1 of the
Guidelines if he “gives false testimony concerning a material matter with the willful
intent to provide false testimony.” Dunnigan, 507 U.S. at 94.
Yet, in order to apply the § 3C1.1 enhancement, “a sentencing court must
make a specific finding—that is, one which is independent of the jury verdict—that
the defendant has perjured herself.” United States v. Massey, 48 F.3d 1560, 1573
(10th Cir. 1995). This finding must encompass “all of the factual predicates of
perjury.” Dunnigan, 507 U.S. at 95. That is, the court must find that a witness “(1)
when testifying under oath, gives false testimony; (2) concerning a material matter;
(3) with willful intent to provide false testimony, rather than as a result of
confusion, mistake or faulty memory.” Massey, 48 F.3d at 1573. In determining
whether each of these requirements has been satisfied, “it is preferable for a district
court to address each element of the alleged perjury in a separate and clear finding.”
Dunnigan, 507 U.S. at 95. Additionally, “sentencing judges [must] specifically
29
identify or describe the perjurious testimony before applying the enhancement under
§ 3C1.1.” Massey, 48 F.3d at 1573. Here, the parties dispute whether the district
court’s findings satisfy § 3C1.1’s requirements.
In support of its decision to impose the enhancement, the district court set
forth the following findings:
The testimony that I’ve heard today shows that this defendant had
no formal arrangement ever with the Weber/Morgan Task Force,
that he had no formal authorization to purchase drugs either with
his own money or anyone else’s money, that any relationship he
had with Don Johnson terminated well before the transaction in
this case; in fact, before five of the related conduct transactions .
. .; that there is no agent or officer named Adam associated with
the Task Force, and that th[is] was the name that was given by the
defendant at trial.
R., Vol. III, at 556 (Sentencing Hr’g., dated May 30, 2018). Mr. Gomez-Castro
argues that these findings fail to satisfy the requirements established in Dunnigan
and Massey. With the possible exception of the court’s reference to the testimony
regarding “Adam,” Mr. Gomez-Castro argues that the court “failed to identify any
specific testimony by Mr. Gomez-Castro that was both material and willfully false.”
Aplt.’s Opening Br. at 48. The government disagrees. It argues instead that the
district court’s findings were wholly sufficient because they encompassed all of the
above-mentioned factual predicates of perjury and adequately identified the
perjurious testimony.
As previously mentioned, we shall review the district court’s decision to
impose the sentence enhancement under the plain error standard of review. We do
30
so because we conclude that Mr. Gomez-Castro failed to properly raise his objection
to the enhancement in the district court. More precisely, the challenge that he now
raises on appeal is not the same challenge that he raised before the district court. In
the district court, Mr. Gomez-Castro objected to the sufficiency of the evidence to
support an enhancement; that is, he argued that none of his testimony was
perjurious. See Aplt.’s App., Vol. I, at 137 (Def.’s Resp. to PSR, filed May 18,
2018) (“Based on the post-conviction investigation, Defendant asserts that he
testified truthfully regarding his undercover work with the narcotic’s task force.”).
However, Mr. Gomez-Castro did not object to the sufficiency of the court’s findings
at the hearing; that is, he did not argue that the district court failed to “specifically
identify or describe the perjurious testimony before applying the enhancement under
§ 3C1.1.” Massey, 48 F.3d at 1573; see Aplt.’s App., Vol. III, at 559 (after
announcing its sentence and its rulings on Mr. Gomez-Castro’s PSR objections,
including the one concerning the § 3C1.1 enhancement, the district court asked
“[d]id I miss anything,” and Mr. Gomez-Castro’s counsel’s answer did not raise the
adequacy of the court’s perjury findings).
This distinction between an objection to the substantive basis for a § 3C1.1
enhancement—viz., an objection to the sufficiency of the evidence that the
defendant committed perjury—and an objection to the sufficiency of the court’s
factual findings concerning the alleged perjury (per Dunnigan and Massey) is a real
one and a matter of consequence on the question of preservation. See United States
31
v. Hawthorne, 316 F.3d 1140, 1146–47 (10th Cir. 2003) (addressing separately the
defendant’s “attacks” on the § 3C1.1 enhancement, presented on the distinct
“grounds” that, as a matter of substance, the defendant “did not commit perjury,”
and further, that “the district court’s findings were inadequate”); cf. United States v.
Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008) (“In this case, the government
objected to the district court’s proposed downward variance . . . but did so solely on
substantive grounds. A party must specifically object to the district court’s
procedure in order to preserve that issue for review.”); cf. also United States v.
Hernandez-Lopez, 320 F. App’x 832, 836 n.1 (10th Cir. 2009) (unpublished)
(“While defense counsel vigorously disputed substantive dimensions of his client’s
sentence, after the court explained its reasons for rejecting counsel’s variance
arguments . . ., counsel informed the court that it had no additional objections. It is
far from clear whether counsel’s substantive objections, coming before the court’s
explanations, put the court on notice that counsel viewed the court’s later
explanation for its sentence to be procedurally inadequate.”). We thus conclude that
Mr. Gomez-Castro forfeited his challenge to the district court’s § 3C1.1 findings,
and we review the adequacy of those findings under the plain error standard of
review.
As noted, under the second prong of the plain-error analysis, Mr.
Gomez-Castro must show that the alleged error was plain, i.e., “clear or obvious
under current law,” McGehee, 672 F.3d at 876. “Generally speaking, we do not
32
deem an error to be obvious and clear unless it is contrary to current ‘well-settled
law’—that is, to the current law of the Supreme Court or the Tenth Circuit.” United
States v. Wardell, 591 F.3d 1279, 1298 (10th Cir. 2009). Mr. Gomez-Castro has not
shown that he can satisfy this standard.
His argument that the district court erred in imposing the sentence
enhancement is based on a misreading of Massey and Dunnigan. The standard set
forth in those cases for the required perjury findings is simply not as stringent as
Mr. Gomez-Castro suggests. After all, in Massey we said that a sentencing court
“need not recite the perjured testimony verbatim,” but rather need only describe the
testimony in a manner such that when this court “review[s] the transcript . . . [it
need not] speculate on what the district court might have believed was the perjurious
testimony.” Massey, 48 F.3d at 1574. Weighed against this standard, we cannot say
that the district court’s findings were clearly or obviously erroneous. The court
effectively identified as perjurious Mr. Gomez-Castro’s statements regarding his
arrangement with the Weber-Morgan Task Force, the timing of his cooperation
relationship with Don Johnson, his statements regarding a Task Force officer named
Adam, and the purported basis for his drug purchases. These findings—viewed in
totality—do not clearly require us to “speculate on what the district court might
have believed was the perjurious testimony.” Massey, 48 F.3d at 1574. Stated
otherwise, it is not clear or obvious that these findings are erroneous under
Dunnigan and Massey; therefore, under plain error review, they pass muster.
33
We underscore that, under the plain error standard of review, the burden of
proof is not on the government to show that the perjury findings fully comply with
the requirements set forth in Dunnigan and Massey. Instead, Mr. Gomez-Castro
must show that the findings are clearly or obviously contrary to this precedent. This
he cannot do. The district court did not commit an error that was “clear or obvious
under current law” when it imposed a two-level sentence enhancement for
obstruction of justice. McGehee, 672 F.3d at 876.
IV
For the foregoing reasons, we hold that the district court did not commit
reversible error in its jury instructions, did not abuse its discretion in denying Mr.
Gomez-Castro’s motion for a new trial, and did not commit reversible error in
applying an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 to Mr.
Gomez-Castro’s Guidelines sentence. Thus, we AFFIRM the district court’s
judgment as to Mr. Gomez-Castro’s conviction and sentence.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
34