United States v. Gomez ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0550n.06
Filed: August 2, 2006
No. 05-5257
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
ROEL GOMEZ, ) OPINION
)
Defendant-Appellant. )
BEFORE: MARTIN, NORRIS, and McKEAGUE, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. After a four-day trial, a jury returned guilty verdicts
on all three counts of a second superseding indictment that charged defendant Roel Gomez with
cocaine trafficking, 21 U.S.C. § 841(a)(1), soliciting the murder of a former associate in order to
prevent the communication of information relating to the possible commission of a federal offense
to a law enforcement officer or judge of the United States, 18 U.S.C. § 373, and money laundering,
18 U.S.C. § 1956(a)(1). On appeal, defendant raises a number of issues, ranging from the denial of
his motions to suppress to the reasonableness of his sentence. For the reasons that follow, we affirm
both defendant’s conviction and sentence.
I.
According to his trial testimony, Thomas Richardson, a drug trafficker in Nashville, began
to purchase cocaine and marijuana from defendant in 2001. He had already had drug dealings with
defendant’s associate, Santiago Franco, also known as “Chaho.”
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Richardson had been serving a nine-month sentence for drug trafficking when released in
2001. He was contacted by Franco who sought repayment of a drug debt and a resumption of their
prior business relationship. As a partial payment of the debt, Richardson testified1 that Franco told
him to give $25,000 and a Rolex watch worth between $30,000 and $40,000 to defendant.
Thereafter, Richardson resumed his drug-dealing with Franco. Initially, Franco “fronted”
Richardson five to ten kilograms of cocaine. Richardson would sell the drugs and then Franco,
defendant, and a third individual known as “Betho” would pick up the proceeds. By the middle of
2002 Richardson testified that “I started receiving larger amounts . . . from 20 to 50 kilos at a time
and several hundred pounds of marijuana, 500 hundred to close to around 1,000 at a time.” When
asked about defendant’s role in the operation, Richardson stated that defendant did “a lot of
overseeing, meaning counting money at times and letting me know that – calling me back, letting
me know that money was short . . . basically just doing a lot of overseeing over the whole
organization.”
During the course of 2002, the relationship between Franco and defendant began to alter.
Franco was not always able to deliver drugs as promised and Richardson learned that Franco “owed
a drug debt and that him and Gomez had confusion about money or some partial of some drugs or
whatever.” After Richardson expressed reservations about Franco, defendant promised Richardson
that things would improve and that he would arrange the deals. These deals started out at 30
kilograms of cocaine but “the quantity grew larger every time.”
1
At the time of trial, Richardson had already entered into a plea agreement that included the potential of a
U.S.S.G. § 5K1.1 downward departure based upon substantial assistance.
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Defendant told Richardson that the drugs were arriving by commercial vehicles and
Richardson, in turn, would loan cars to defendant to pick the drugs up when they arrived. Rather
than use motel rooms to store the drugs as in the past, Richardson and the defendant used two houses
in Nashville, one at 510 Lou Court and the other on Cedar Valley Drive. Defendant would often
stay at the residences to “babysit” the drugs.
In addition to defendant, Richardson mentioned that another individual named Mick would
watch over the money at the Cedar Valley residence. Mick worked for the “boss” in Mexico, who
was known as “Twenty-One.” At trial, Richardson identified a picture of one Alfredo Quiroz as the
man he knew as Mick.
However, things began to unravel in March of 2003 when Nashville police officers made
several controlled drug buys from Clayton Richardson, Thomas’s brother. While conducting
surveillance, officers observed Clayton and the girlfriends of the Richardson brothers at the Lou
Court house.
Eventually, a search warrant was obtained and the house was searched on June 12, 2003.
Cocaine base, drug paraphernalia, guns, and ledgers were seized. The ledgers recorded drug
transactions between the Richardson brothers and defendant. The same day officers executed a
search warrant at 453 Cedar Valley Drive; firearms, drug paraphernalia, and related paperwork were
recovered.
The next day, police arrested a number of individuals, including Thomas Richardson and
Santiago Franco. Richardson began cooperating with authorities and placed recorded calls to his
former business associates, including defendant. On June 18, 2003, a monitored meeting occurred
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between Richardson and defendant. During the meeting, defendant told Richardson that there were
75 kilograms of cocaine on a tractor trailer due to arrive in Nashville. Defendant also spoke about
the recent arrest of Franco. Defendant was worried that his former colleague might begin
cooperating with the government and, to prevent this possibility, he told Richardson, “We got to kill
him, man. Five Gs, I offer whoever takes his life.” At about midnight the same day, Richardson met
again with defendant, who was convinced that Franco was “ratting me out” and must be killed.
Because Franco was known as “Chaho,” defendant spelled out his last name so there was no mistake
about his identity.
The next evening, defendant called Richardson and told him to be in the area of his residence
in about an hour. Officers established surveillance of both defendant and his residence. Later that
evening, they watched defendant leave in a white Ford F-150 pick-up truck with a temporary tag
issued from Auto Trend, Inc. Defendant drove to TSI Trucking, where officers believed he was
meeting the tractor trailer to pick up the shipment of cocaine. Defendant only stayed a few minutes
and then left. Officers then instructed Richardson to call and ask if he had the cocaine. Defendant
replied that he did.
Defendant was then arrested. However, in the course of the arrest, he rammed a police car
and then attempted to flee on foot. When his vehicle was searched, approximately 75 kilograms of
cocaine – with a street value of $18,000,000 – were found. After his arrest, defendant made certain
incriminating statements, which will be discussed below, that he later sought to suppress.
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With respect to the money laundering count, officers later executed a search warrant at Auto
Trend, Inc., of Nashville where defendant had purchased with alleged drug proceeds several vehicles
that he used to advance his trafficking operations.
II.
A. Motions to Suppress
Defendant filed two motions to suppress evidence. The first sought suppression of the
cocaine seized from his pick-up truck on the night of his arrest; the second sought suppression of
inculpatory statements made to police officers after his arrest. The district court held a hearing, after
which it denied the motions. When reviewing a district court’s denial of a motion to suppress, we
review factual findings for clear error and legal conclusions de novo. United States v. Abboud, 438
F.3d 554, 568 (6th Cir. 2006) (citing United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004)).
1. Suppression of Cocaine
Two Metropolitan Nashville Police Department officers, Jessie Burchwell and Troy
Donegan, testified at the suppression hearing. Their testimony largely tracked the factual recitation
presented earlier. At the close of the hearing, the district court denied the motion to suppress the
cocaine based on the following reasoning:
Defendant had been arrested. He could have been arrested for a variety of crimes at
that point. Probable cause certainly existed for the arrest for, first of all, possession
of a large quantity of cocaine. . . . The Government agents had been working with
an informant for several days. . . .
....
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So at that point, they had probable cause to arrest him for possession of
cocaine and conspiracy. . . . The officers cornered the Defendant’s vehicle when he
stopped for a stop light. . . .
At that point he rammed the car in front of him and the car behind him, full
knowing that these were officers attempting to apprehend him. So at that point we
have assault on an officer, another crime that has been committed right in the
presence of the officers who luckily escaped injury. . . .
....
. . . The Defendant was properly under arrest and under . . . the Thornton
decision from the Supreme Court in May of this year, as a recent occupant of the
vehicle, the search of the vehicle would have been justified.
Although not addressed by defense counsel, the district court correctly recognized that
Thornton v. United States, 541 U.S. 615 (2004), controls the resolution of this issue. In Thornton,
the Supreme Court extended the authority to search to situations in which the person arrested is no
longer the occupant of the vehicle subject to search:
In New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981),
we held that when a police officer has made a lawful custodial arrest of an occupant
of an automobile, the Fourth Amendment allows the officer to search the passenger
compartment of that vehicle as a contemporaneous incident of arrest. We have
granted certiorari twice before to determine whether Belton’s rule is limited to
situations where the officer makes contact with the occupant while the occupant is
inside the vehicle, or whether it applies as well when the officer first makes contact
with the arrestee after the latter has stepped out of his vehicle. We did not reach the
merits in either of those two cases. Arizona v. Gant, 540 U.S. 963, 124 S. Ct. 461, 157
L. Ed. 2d 308 (2003) (vacating and remanding for reconsideration in light of State v.
Dean, 206 Ariz. 158, 76 P.3d 429 (2003)); Florida v. Thomas, 532 U.S. 774, 121
S. Ct. 1905, 150 L. Ed. 2d 1 (2001) (dismissing for lack of jurisdiction). We now reach
that question and conclude that Belton governs even when an officer does not make
contact until the person arrested has left the vehicle.
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541 U.S. at 617. This court has affirmed the denial of a motion to suppress based upon Thornton,
see, e.g., United States v. Herndon, 393 F.3d 665, 668 (6th Cir.), vacated on other grounds and
remanded for resentencing, 125 S. Ct. 2279 (2005), and we now do so again.
2. Suppression of Post-Arrest Statements
According to the testimony of Officer Donegan, when transporting defendant to the federal
courthouse on the day after his arrest, defendant “began to talk about Franco Santiago, another
Defendant in another drug case, stating that he wanted the same deal that Franco got. He also said
that Franco had burned up Nashville, or had set Nashville afire, and that anything that Franco had,
he had actually gotten from him, meaning Mr. Gomez. And that Franco worked for Gomez.”
Donegan went on to state that the statements were “unsolicited” and that neither he nor Officer
Burchwell responded to defendant.
After hearing testimony, the district court denied defendant’s motion to suppress post-arrest
statements for the following reasons:
In terms of the statements made by the Defendant, the Court finds as follows.
The Defendant was given his Miranda rights upon his arrest, in the late evening
hours of June 19. He chose not to speak at that time. The Government is not relying
upon any of those statements in this case because there weren’t any statements. The
statements were made the next day, when sometime between 8:00 and 9:30 or 10:00,
Officer Burchwell and Officer Donegan . . . went to the Criminal Justice Center to
bring the Defendant over for booking on the Federal charges to the Federal
Courthouse.
No additional Miranda warnings were given at that time because the officers
did not intend to question the Defendant, and the Court finds in fact the officers did
not question the Defendant.
The Court finds that upon approaching the Federal Courthouse and the
loading dock . . . that the Defendant voluntarily made incriminating statements that
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were not elicited, either by interrogation by the officers or by talking among the
officers, designed or not, to elicit some kind of a response from the Defendant.
The Court finds under the totality of the circumstances and by a
preponderance of the evidence, that these statements were voluntary by the
Defendant. They were made in his own interest. He was seeking a deal and that Mr.
Franco, in fact, was the person who was turning him in to the authorities. But the
Court finds those were voluntary statements and that Miranda does not in any way
exclude those statements.
Defendant contends that the inculpatory statements given after his arrest were involuntary
and thus violated Miranda v. Arizona, 384 U.S. 436 (1966). However, defendant did not testify at
the suppression hearing and the testimony of the officers supports the district court’s conclusion that
the statements were made without the encouragement of either of them, a finding that we review for
clear error. Finding none, we affirm the district court.
B. Introduction of Firearms Evidence
Prior to trial, defendant filed a motion in limine to exclude introduction of evidence relating
to a “gun that was recovered from a vehicle subsequent to the arrest of the Defendant.” According
to defendant’s motion, introduction of the firearm would be used primarily to call his character into
question in contravention of Fed. R. Evid. 404(b). It also noted that defendant had not been charged
with possession of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. §
924(c).
At the pretrial conference, the district court made the following observations:
And the other [motion] about guns, this objection is . . . based on [Rule of Evidence]
404, and other than the guns are generally admissible in drug trials, [the AUSA] says
that the defendant’s knowledge that the informant possessed multiple firearms
supports his knowledge that the informant was a drug dealer which is relevant to the
money laundering charge, which makes sense to me. And then the fact that he was
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soliciting the informant who he knew to be an armed drug dealer to have a potential
witness killed also helps demonstrate the seriousness of his intent.
So that all makes a lot of sense to me. What do you have to say about his
response?
DEFENSE COUNSEL: That does make a lot of sense. And if that’s . . . how the
proof in this case goes, then there may be a reason for that to come in.
Although the motion in limine sought exclusion only of the firearm seized from defendant’s
pick-up truck on the night of his arrest, at trial defense counsel also objected to the introduction of
evidence during Officer Burchwell’s testimony of a MAC-11 seized at the Cedar Valley Drive
address. The district court denied the objection but told counsel, “I’m just going to instruct the jury
at this time we are hearing about searches but there’s no connection at this time to this defendant.”
In a similar vein, defense counsel objected when Richardson mentioned the MAC-11 and
a .40 caliber Glock left at the Cedar Valley address. According to Richardson, “I would leave
[defendant] with the guns basically. He would want the gun there for protection use.”
As part of its instructions, the district court told the jury: “You have heard testimony that the
defendant committed some acts other than the ones charged in the indictment. You cannot consider
this testimony as evidence that the defendant committed the crimes that he’s on trial for now.”
This court recently reiterated the manner in which we review admission of evidence pursuant
to Rule 404(b):
First, we review for clear error the district court’s factual determination that
sufficient evidence exists that the other acts occurred. Second, we review de novo
whether the district court correctly determined that the evidence was admissible for
a legitimate purpose. Third, we review for abuse of discretion the district court’s
determination that the “other acts” evidence is more probative than prejudicial under
Rule 403.
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United States v. Matthews, 440 F.3d 818, 828 (6th Cir. 2006) (citing United States v. Comer, 93 F.3d
1271, 1277 (6th Cir. 1996)).
Turning to the issue before us, we note that each of the three charged counts requires proof
of some element of intent. Second, firearms are considered “tools of the drug trade” and, as such,
are admissible in drug trafficking trials even if no firearms charge has been alleged. See United
States v. Ware, 161 F.3d 414, 417-18 (6th Cir. 1998). Third, Richardson testified that he, not
defendant, owned the guns in question, lessening the danger of unfair prejudice. And, fourth, the
limiting instructions mentioned above properly guided the jury in the manner in which it weighed
this evidence. Given these considerations, we affirm the decision of the district court to permit the
introduction of evidence of the firearms at trial.
C. Summary of Recorded Conversations
As mentioned earlier, during their investigation of defendant, law enforcement agents
arranged for certain conversations between Richardson and defendant to be recorded. During trial,
Officer Burchwell was asked to summarize what he heard during one conversation. Defense counsel
objected on the ground that the tapes would later be introduced at trial. The AUSA responded, “I’m
not asking what’s on the tape. I’m asking what he heard, so the best evidence rule does not apply.”
The district court overruled the objection and Officer Burchwell recounted the terms of a pending
drug transaction.
Federal Rule of Evidence 611(a) provides as follows:
The court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless
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consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
Fed. R. Evid. 611(a). A trial court’s control over the order and nature of evidence is reviewed for
abuse of discretion. Argentine v. United Steelworkers of America, 287 F.3d 476, 486 (6th Cir.
2002).
We begin by noting that the tapes were played while Officer Burchwell was testifying, not
at a point much later in the trial. His testimony merely provided context based upon his personal
knowledge of what occurred. Moreover, because the recordings were played in their entirety,
Federal Rule of Evidence 1006, which governs the summary “voluminous” materials, is not
apposite.
The district court did not abuse its discretion in permitting this testimony.
D. Variance in the Indictment
Defendant contends that, because the second superseding indictment charged him with
possession of “about seventy-five kilograms of . . . cocaine,” and Tennessee Bureau of Investigation
Agent Glenn testified at trial that the cocaine – not including its packaging – weighed 71.9
kilograms, the entire count should be dismissed because of the “variance in the indictment.”
Typically, this court reviews whether a variance exists de novo. United States v. Searan, 259 F.3d
434, 446 (6th Cir. 2001). However, because defendant did not raise this issue below, we review for
plain error. Fed. R. Crim. P. 52(b).
As defendant concedes, reversal based upon a variance in the indictment is only required
when it affects his “substantial rights” or otherwise impacts his ability to defend himself. See United
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States v. Hart, 70 F.3d 854, 860 (6th Cir. 1995) (“When a Defendant argues a ‘fatal’ or ‘material’
variance, he must demonstrate that the variance prejudiced ‘substantial rights’ and that the variance
took the Defendant by surprise or placed him at risk of double jeopardy.”); United States v.
Feinman, 930 F.2d 495, 499 (6th Cir. 1991) (“Not every variation between indictment and proof at
trial creates reversible error; only those variances that create ‘a substantial likelihood’ that a
defendant may have been ‘convicted of an offense other than that charged by the grand jury’ require
reversal.”). Moreover, “[t]he defendant bears the burden of proving the existence of a variance and
that such variance affected his substantial rights or rose to the level of a constructive amendment of
the indictment.” Searan, 259 F.3d at 446.
Defendant fails to explain how the slight variance between the quantity of drugs charged and
the amount introduced at trial was either “material” or “prejudicial” to his defense. Certainly it
would not have “taken him by surprise” thereby affecting his trial strategy. Particularly in light of
the fact that we are reviewing for plain error, we conclude that defendant failed to carry his burden
with respect to this issue.
E. Alleged Hearsay Statement
As mentioned briefly earlier, the third count of the indictment, which charged defendant with
money laundering, was premised upon his purchase of a 2000 Chevrolet Tahoe from Auto Trend,
Inc., of Nashville with proceeds derived from drug trafficking. Mohsen Ghiassi, who testified for
the government, sold the vehicle in question to defendant. Naji Saleem worked at a nearby dealer
named U.S. Auto and testified that he knew both Ghiassi and defendant.
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Saleem began by explaining that he worked in a neighboring car lot and came to know
defendant when he purchased a car from him for $7,500 in cash. He went on to state that defendant
bought several cars from Ghiassi. In the course of his testimony, the following exchange occurred:
AUSA: During the course of these purchases [by defendant from Ghiassi],
did Mr. Ghiassi ever tell you anything about how he’s feeling about
the defendant?
Defense Counsel: Your Honor, object to what Mr. Ghiassi said.
AUSA: Prior consistent statement. [Ghiassi’s] credibility has been attacked.
Court: Overruled.
Saleem: Toward the last vehicle, toward the end of it, the last vehicle that he was
purchasing . . . Mr. Ghiassi wasn’t feeling comfortable, and he mentioned to
me that he doesn’t want to buy any of those vehicles anymore.
....
At the beginning, he told me that he wasn’t feeling comfortable. Then later
on he told me that [defendant] mentioned to something to him about, you
know, having to purchase the car for him or something bad might happen to
the business or . . . to him, or something like that.
Defendant contends that Saleem’s testimony was offered for the truth of the matter asserted
and therefore constitutes improper hearsay. Fed. R. Evid. 801(c). However, Fed. R. Evid.
801(d)(1)(B) provides in part that a statement is not hearsay if “[t]he declarant testifies at the trial
. . . and is subject to cross-examination concerning the statement, and the statement is . . . consistent
with the declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive . . . .” Like the majority of the
circuits, we permit the introduction of prior consistent statements by a third party so long as the
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other requirements of Rule 801(d)(1)(B) are satisfied. See United States v. Hebeka, 25 F.3d 287,
292 (6th Cir. 1994).
In this case, Ghiassi testified and was subject to cross-examination. Among other things, he
acknowledged that he had not been entirely truthful when speaking to government officials in his
initial interview and had agreed to plead guilty to failure to file reports of cash received in trade.
He attributed his deception to concern for his family: “I [was] scared if I say something they are
going to hurt my family.” He went on to mention that defendant threatened another man’s family
in his presence and that these threats, though not directed at him, scared him.
On cross-examination, defense counsel asked Ghiassi if he would avoid jail time by pleading
guilty and whether he lied to the FBI. Counsel also asked, “Are you saying . . . that between the first
interview and the second interview you somehow began to change the truth because you were
somehow scared for your family. Is that correct?”
In our view, the requirements of Rule 801(d)(1)(B) have been satisfied. First, both Ghiassi
and Saleem were subject to cross-examination. Second, defense counsel implied that Ghiassi’s
testimony was recently fabricated to avoid prison. Third, Saleem’s statement about being “scared”
was consistent with Ghiassi’s testimony. And, fourth, the statement Saleem attributed to Ghiassi
was made before his contact with the FBI, which defense counsel implied provided the motivation
to lie.
F. Disputed Testimony Regarding the Taped Conversations
Defendant also takes issue with the fact that the district court permitted the government to
play portions of the taped conversations between Richardson and himself a second time. As already
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mentioned, the tapes were originally introduced and played during the testimony of Officer
Burchwell, who prefaced their playing by summarizing their content. Later, Thomas Richardson
was called to testify as the government’s final witness. Noticing that audio equipment had been
brought into the courtroom, defense counsel objected to any replaying of the tapes. When asked,
the AUSA explained that he wanted to play portions of the tapes so that Richardson “could talk
about what he is talking about there.”
Richardson proceeded to testify and, after discussing other matters, he was given transcripts
of the recorded calls and asked about them. Portions of the recordings were then played and
Richardson was asked to identify the voices and explain the gist of certain conversations.
In United States v. Martin, 920 F.2d 393 (6th Cir. 1990), we provided the following guidance
concerning testimony about audiotapes:
First, the conversation on the tape was between the defendant and a testifying
witness and was introduced while the witness was on direct examination. Under such
circumstances the witness, if the prosecutor asks, is free to first describe the
conversation in his own words and indicate what was said and what occurred. The
tape may then be played as corroboration. If the tape is played first, however, it does
not mean that a party to that conversation is thereby prohibited from testifying
relative to the event.
Id. at 397 (footnote omitted) (emphasis added).
We begin by noting that Richardson’s testimony helped to explain specific portions of the
conversations that contained terms of art with respect to drug-trafficking. For instance, Richardson
testified that the words “birds” and “bricks” referred to kilograms of cocaine; that his “uncle” was,
in fact, the trucker transporting the drugs; and that defendant’s comment, “the best way not to catch
a case is to pop him inside,” meant that Franco should be killed while incarcerated. Furthermore,
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because it was different in scope and focus than Officer Burchwell’s testimony, which merely gave
a general sense of the setting in which the tapes were recorded, their use during Richardson’s
appearance was not merely cumulative.
The district court expressed its awareness of the potential danger of cumulative evidence and
instructed the government to play only selected portions of the tapes, which it did. Accordingly, the
danger of unfair prejudice was minimized. We affirm the district court on this point for those
reasons.
G. Sufficiency of the Evidence
Defendant contends that the evidence was constitutionally insufficient to support his
conviction on Count II of the indictment, which charged him with violating 18 U.S.C. § 373.
Specifically, the second superseding indictment reads as follows:
On or about June 18, 2003, in the Middle District of Tennessee, the
defendant, ROEL GOMEZ, with intent that another person engage in conduct
constituting a felony that has as an element the use, attempted use, or threatened use
of physical force against the person of another in violation of the laws of the United
States, and under circumstances strongly corroborative of that intent, did solicit,
command, induce, and endeavor to persuade another person to engage in such
conduct, that is to unlawfully kill and murder . . . Santiago Franco, a human being,
with malice aforethought, with intent to prevent the communication by such person
to a law enforcement officer or judge of the United States of information relating to
the commission or possible commission of a federal offense, in violation of Title 18,
United States Code, Section 1512(a)(1)(C).
In violation of Title 18, United States Code, Sections 373 and 2.
The statute of conviction makes it a crime to recruit another person to “engage in conduct
constituting a felony that has as an element the . . . threatened use of physical force . . . against the
person of another in violation of the laws of the United States, and under circumstances strongly
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corroborative of that intent, solicits . . . or otherwise endeavors to persuade such another person to
engage in such conduct . . . .” 18 U.S.C. § 373(a). For its part, 18 U.S.C. § 1512(a)(1)(C) makes
it a crime to “attempt to kill another person, with intent to . . . prevent the communication by any
person to a law enforcement officer or judge of the United States information relating to the
commission or possible commission of a Federal offense . . . .”
This court “reviews a sufficiency of the evidence claim de novo, considering ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” United States v.
Ostrander, 411 F.3d 684, 690-91 (6th Cir.), petition for cert. denied, 126 S. Ct. 469 (2005) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Defendant takes the position that the government failed to produce evidence that he believed
Franco might communicate with federal authorities or that he knew of an ongoing federal
investigation when he solicited Richardson to murder Franco. The government counters that the
conversation taped on June 18, 2003 includes defendant telling Richardson, “Five Gs, I offer
whoever takes his life.” Defendant repeated this wish several times, telling Richardson “for us not
to catch a case is to pop him inside. . . . Just offer those 5 Gs whoever’s inside.” With respect to the
requirement of § 1512(a)(1)(C) that the killing be with the intent to “prevent the communication by
any person to a law enforcement officer . . . of the United States of information relating to the
commission . . . of a Federal offense,” in one of their recorded conversations defendant told
Richardson that he knew of a list maintained by the federal Drug Enforcement Agency that
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contained Franco’s name. In short, defendant knew that a federal drug investigation was afoot that
involved the very man he sought to kill.
A defendant raising a sufficiency of the evidence challenge “bears a heavy burden, as we
view the evidence in the light most favorable to the prosecution.” United States v. Jefferson, 149
F.3d 444, 445 (6th Cir. 1998) (rejecting such a challenge in a § 1512(a)(1)(C) prosecution).
Defendant’s comments to Richardson about eliminating Franco were repeated on more than one
occasion and defendant admitted that he had discussed the subject with his mother, who agreed that
Franco must be killed. He also went so far as to spell out Franco’s name for Richardson to avoid
mistakes. The jury apparently took these statements at face value and, given that the charge was
soliciting a murder, this finding, coupled with defendant’s knowledge that a DEA investigation was
afoot, is constitutionally sufficient to support his conviction.
H. Lesser Included Offense
Defendant mounts a second challenge to his § 373 conviction, arguing that the district court
should have instructed the jury to consider whether he violated 18 U.S.C. § 1512(b)(3) rather than
18 U.S.C. § 1512(a)(1)(C) as the underlying predicate felony offense.2 “A criminal defendant is
entitled to an instruction on a lesser-included-offense if: (1) a proper request is made; (2) the
elements of the lesser offense are identical to part of the elements of the greater offense; (3) the
evidence would support a conviction on the lesser offense; and (4) the proof on the element or
elements differentiating the two crimes is sufficiently disputed so that a jury could consistently
2
The § 373 count appears in full in the previous section of this opinion.
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No. 05-5257
United States v. Gomez
acquit on the greater offense and convict on the lesser.” United States v. Colon, 268 F.3d 367, 373
(6th Cir. 2001).
Here, the two statutory provisions read in part as follows:
Whoever kills or attempts to kill another person with intent to . . . prevent the
communication by any person to a law enforcement officer . . . of the United States
of information relating to the commission or possible commission of a Federal
offense . . . .
18 U.S.C. § 1512(a)(1)(C) (emphasis added).
Whoever knowingly uses intimidation, threatens, or corruptly persuades another
person, or attempts to do so, or engages in misleading conduct towards another
person, with intent to . . . hinder, delay, or prevent the communication to a law
enforcement officer . . . of the United States of information relating to the
commission or possible commission of a Federal offense . . .
18 U.S.C. § 1512(b)(3) (emphasis added).
Because the offense of conviction, 18 U.S.C. § 373, requires “the use, attempted use, or
threatened use of physical force against . . . the person of another,” § 1512(b)(3) can only serve as
a predicate offense if we conclude that using intimidation, threats, or corrupt persuasion falls within
that definition. We conclude that it does not because § 1512(b)(3) does not require the use of
physical force. It is not surprising, therefore, that defense counsel failed to produce a single case
in support of his proposed lesser included offense instruction, nor has our own independent research
revealed any instance in which § 1512(b)(3) was charged as the predicate in a § 373 count.
Under the circumstances, the district court did not abuse its discretion in declining to instruct
the jury with respect to § 1512(b)(3).
I. Defendant’s Sentence
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No. 05-5257
United States v. Gomez
Finally, defendant contends that his sentence of 35 years of imprisonment was
“unreasonable” as that term is understood in the post-Booker universe. United States v. Booker, 543
U.S. 220 (2005). In the wake of Booker, the federal sentencing guidelines are advisory and the
district court must consider the factors set forth in 18 U.S.C. § 3553(a) when imposing a sentence.
“A sentence may be unreasonable ‘when the district judge fails to “consider” the applicable
guidelines range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a), and instead
simply selects what the judge deems an appropriate sentence without such consideration.’” United
States v. Chander, 419 F.3d 484, 486 (6th Cir. 2005) (quoting United States v. Webb, 403 F.3d 373,
383 (6th Cir. 2005)). However, the trial court need not engage in a “ritualistic incantation” of the
factors set forth in § 3553(a) when imposing a sentence. Id. at 388.
In this case, the pre-sentence report was completed on December 22, 2004 with sentencing
scheduled for January 24, 2005. Although defendant’s criminal history was only Category I, the
severity of his offenses resulted in an adjusted offense level of 51, which calls for a sentence of life
imprisonment. However, Booker was decided between the preparation of the pre-sentence report
and sentencing.
At the sentencing hearing, the district court made clear to counsel that Booker had altered
the legal landscape and that it would not take into account all of the relevant conduct with respect
to drug quantity considered in the pre-sentence report. As it observed, the government “charged
only the 75 kilograms of cocaine . . . [and] [t]his defendant was not charged with conspiracy.”
However, the court overruled defendant’s objections to other guidelines enhancements, such as three
points for assault of law enforcement officers and four points for role in the offense.
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No. 05-5257
United States v. Gomez
After noting that it found the guidelines helpful to the extent that “they make you think about
all the various pieces of an offense that might make it more aggravated or less aggravated in any
particular case,” it mentioned the factors set forth in 18 U.S.C. § 3553(a). The court then
acknowledged that the guidelines were “just one of those [statutory] factors” to be considered before
turning to defendant’s request for a downward departure. Defense counsel urged the court to
consider a sentence “somewhere between about 28 years up to about 34 or 35 years” based upon
defendant’s youth (he was 24 at the time of sentencing) and lack of prior convictions. The court
responded in these terms:
The court has considered everything that’s been said and everything that has been
filed here. And it seems to me that an appropriate sentence in this case is 35 years
on Count One, which is 420 months, to be followed by 240 months on Count Two,
to run concurrent with Count One; and 240 months on Count Three, to run
concurrent with Count One.
These are the reasons for my sentence. And I will say that the total offense
level given my prior rulings is 49, criminal history category “I,” and the guideline
range does result in a life sentence.
And these are the reasons for not giving a life sentence. First of all, despite
the fact that the guideline range is determined in part by criminal history of the
particular defendant, under the statute the history and characteristics of the defendant
is a separate consideration, and the court is still very struck with the fact that Mr.
Gomez is basically a first offender. . . .
He is 24. He had an alcohol abuse problem since the age of 13. The pre-
sentence report says that he drank a 12-pack of beer every other day and a fifth of
rum or whiskey on the weekends. He has used marijuana since the age of 12 every
three to four days; cocaine since the age of 18; heroin, Ecstasy.
He obviously has an extremely serious alcohol and drug dependence problem
....
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No. 05-5257
United States v. Gomez
The court went on to note that defendant did not “live like a king” while dealing drugs and had
shown the “beginning of what I think will be a sincere change of heart.” Finally, it observed that
a 35-year sentence would send “a strong message in terms of deterrence of criminal conduct.”
Given that defendant faces exposure to a potential life sentence and that the term he received
fell within the range that his counsel requested, it is somewhat surprising that he raises a challenge
to his sentence at all. That consideration aside, it is clear to us that the district court approached
defendant’s sentencing in precisely the manner required by Booker: it considered the guidelines as
advisory; made no inappropriate factual findings; and considered the public policy points embraced
in 18 U.S.C. § 3353(a). For those reasons, defendant’s sentence is “reasonable” and must be
affirmed.
III.
The judgment is affirmed.
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