United States v. Julio Gomez ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 28 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50313
Plaintiff-Appellee, D.C. No.
2:16-cr-00401-ODW-1
v.
JULIO CESAR GOMEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted April 16, 2021
Pasadena, California
Before: M. SMITH and IKUTA, Circuit Judges, and STEELE,** District Judge.
Julio Cesar Gomez appeals his convictions, and subsequent sentence, for
conspiracy with intent to distribute at least 50 grams of methamphetamine,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.
distribution of methamphetamine, and being a felon in possession of a firearm. We
have jurisdiction under 28 U.S.C. § 1291.1
The district court did not abuse its discretion in deciding not to ask the jury
the specific voir dire questions proposed by Gomez regarding their pro-law-
enforcement bias or gang bias, because those questions were adequately covered
by the court’s other voir dire questions and statements, see United States v.
Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1979), and Gomez’s proposed questions
were not “reasonably calculated to discover an actual and likely source of
prejudice,” United States v. Jones, 722 F.2d 528, 530 (9th Cir. 1983) (citation and
internal quotation marks omitted). Moreover, “[i]f there are particular questions
that counsel deems essential, and such that refusal to put them may be reversible
error, counsel must tell the court so, and state his reasons, before the examination
of the jurors is completed.” United States v. Blosvern, 514 F.2d 387, 389 (9th Cir.
1975). Because Gomez failed to do so here, his objections to the court’s failure to
give his proposed instructions are forfeited. Id.
1This memorandum addresses Gomez’s challenges to the district court’s
voir dire and failure to provide a Sears instruction. We address Gomez’s
remaining challenges in an opinion filed concurrently with this memorandum
disposition. See ___ F.3d. ___ (9th Cir. 2021).
2
The district court did not plainly err in its management of voir dire. The
district court has “ample discretion” in how it manages voir dire. Rosales-Lopez v.
United States, 451 U.S. 182, 189 (1981). Given the total context of the voir dire
proceeding, the district court’s statements did not chill the jurors’ responses to voir
dire questions or affect Gomez’s substantial rights. See United States v.
Davenport, 519 F.3d 940, 943 (9th Cir. 2008). Further, the district court’s
comments, questions, and subsequent jury instructions adequately explained the
presumption of innocence and the need to avoid bias.
Finally, the district court did not plainly err by declining to give a jury
instruction that an individual must conspire with at least one co-conspirator who is
not a government agent or informant before being convicted of conspiracy
(referred to as a “Sears instruction,” after Sears v. United States, 343 F.2d 139, 142
(5th Cir. 1965), which first established this rule). Given the evidence that Gomez
conspired with Carmona and Gonzales, neither of whom was a government agent,
it was not “clear and obvious,” as required for plain error, see United States v.
Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005), that Gomez was entitled to a
Sears instruction, see United States v. Barragan, 871 F.3d 689, 710 (9th Cir. 2017)
3
(“If at least one co-conspirator is not a government agent, a conspiracy conviction
is permitted.”).2
AFFIRMED.
2
The district court’s instruction that “[l]aw enforcement officials may
engage in stealth and deception such as the use of informants and undercover
agents in order to investigate criminal activities,” is a correct statement of law, and
did not undermine the rule that a defendant must conspire with someone other than
a government agent to be guilty of conspiracy. We therefore reject Gomez’s
argument to the contrary.
4