United States v. Gomez

08-3829-cr
United States v. Gomez

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: May 26, 2009 Decided: August 4, 2010)

Docket No. 08-3829-cr

UNITED STATES OF AMERICA,

Appellee,

-v-

ELLIS WILLIAMS GOMEZ,

Defendant-Appellant.

Before: LEVAL, POOLER, and B.D. PARKER,

Circuit Judges.

Appellant Ellis Williams Gomez appeals from a judgment of conviction for conspiracy to

distribute and to possess with intent to distribute 3,4 Methylenedioxy-methamphetamine

(“Ecstasy”). Detective Michael Ryan, who interviewed Gomez’s co-conspirator, Fred Rivas,

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after Rivas was arrested for selling Ecstasy to a confidential informant, provided key testimony

in the case. The prosecution alleged that Gomez was Rivas’s supplier. Gomez contends that the

government elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which

communicated to the jury that Rivas identified Gomez as his supplier. We agree.

Vacated and remanded.

LLOYD EPSTEIN, Epstein & Weil, New York, NY, for Defendant-Appellant.

JOCELYN E. STRAUBER, Assistant United States Attorney, for Lev L. Dassin, Acting United
States Attorney for the Southern District of New York, New York, NY (John M. Hillebrecht, on
the brief), for Appellee.

POOLER, Circuit Judge:

Ellis Williams Gomez appeals from a judgment of conviction (Swain, J.) for conspiracy

to distribute and to possess with intent to distribute 3,4-Methylenedioxy-methamphetamine

(“Ecstasy”) and the resulting sentence, which consisted primarily of sixty-six months

imprisonment. Key testimony in the case against Gomez was provided by Detective Michael

Ryan, who interviewed Gomez’s co-conspirator, Fred Rivas, after Rivas was arrested for selling

Ecstasy to a confidential informant. On appeal, Gomez primarily argues that the district court

admitted prejudicial hearsay in permitting Detective Ryan to testify, by inference, that Rivas told

Ryan that Gomez supplied Rivas with Ecstasy. The government argues that Gomez waived his

hearsay objection, that any possible hearsay problem was cured by the district court’s limiting

instructions, and that, in any event, the evidence was admissible for the proper, non-hearsay

purpose of showing context, in that it explained how Ryan came to place a call to Gomez. We

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hold that Ryan’s testimony included highly prejudicial hearsay, and we reject the government’s

contentions. Moreover, while we find it unnecessary to reach the issue, we note that Ryan’s

testimony also poses a serious Confrontation Clause issue. We vacate Gomez’s conviction and

remand for a new trial.

BACKGROUND

The defendants in the charged Ecstasy conspiracy were Gomez, Rivas, and Darwin Pena.

Rivas and Pena were arrested after they sold 5,000 Ecstasy pills to a confidential informant.

Following their arrest, Rivas cooperated with the government, and the phone calls at the center

of this appeal were made as part of that cooperation. Prior to Gomez’s trial, Rivas and Pena

pleaded guilty.

The government’s opening statement

In its opening, the government told the jury that the evidence would show that after

Rivas’s arrest:

[he] spoke with the agents who arrested him. And the agents instructed him to
make phone calls to the person who supplied him with the five thousand pills.
They told him to say he was with the guy who purchased the five thousand pills,
and that Rivas had money to give to that person. So who did Rivas call? He
called the defendant.

Detective Ryan’s Testimony

Only three witnesses testified against Gomez at trial. The most important of the three

was New York City Police Detective Michael Ryan who testified concerning the arrest and

interrogation of Rivas and supplied foundation for transcripts of recorded conversations between

Rivas and Gomez. Ryan testified that he arrested Rivas on June 8, 2006, and later interviewed

Rivas along with United States Drug Enforcement (“DEA”) Special Agent Rodolfo Cesario, who

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spoke Spanish, Rivas’s native language. Ryan told Rivas “to call the person who had given him

the 5,000 pills that we had seized that morning. We told him to call that person to tell him that

you were with the person, the customer who he sold the 5,000 pills to, that he was collecting

money from that person and that he needed an additional 2,000 pills of Ecstasy.” The agents

provided Rivas with written instructions to state: “I’m here with the guy from the five on 190th.

He gave me something, he wants two more. I’ll call you when I’m nearby.”

Ryan testified that he dialed Gomez’s number on Rivas’s cell phone by locating Gomez’s

number on the phone, setting up a recording device for Rivas, then pressing the send button on

the phone to make the call before passing the cell phone to Rivas. The defense objected on

hearsay grounds to Ryan’s testimony. In response to those objections, the district court

instructed the jury that:

the testimony that you have just heard about instructions given to
Mr. Rivas and Mr. Rivas’s actions in response to those instructions
is not being offered to establish and is not to be considered by you
as evidence that the defendant was, in fact, Mr. Rivas’s supplier.
Rather, the evidence is offered for the more limited purpose of
explaining how it happened that Mr. Rivas made calls to the
defendant.

The government did not call Rivas as a witness at trial.

Closing arguments and charge

In closing, the government said:

[T]he crucial question and the only question that you need to
decide is whether the government has proved that the defendant,
Ellis Williams Gomez, was part of the agreement to distribute
ecstacy. So, what was the evidence on this? Well, you heard that
after Fred Rivas got arrested on June 8 of 2006, he made a series of
telephone calls to the defendant. You heard why those calls
happened. Detective Ryan told Rivas to call the person who had
given him the five thousand pills.

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Defense counsel argued, in part, that even if the jury found that Gomez sold the five thousand

pills to Rivas - which counsel acknowledged would be “a fair and reasonable interpretation” of

the tapes - that finding would not establish a conspiracy. In her charge, Judge Swain again

instructed the jury that it could not use Ryan’s testimony concerning the instructions he gave

Rivas and Rivas’s actions in response to those instructions to establish that Gomez was Rivas’s

supplier.

The jury convicted Gomez of the sole count of the indictment. In a motion for a new trial

pursuant to Rule 33 of the Rules of Criminal Procedure, Gomez primarily argued that Ryan

should not have been permitted to testify as to his understanding of the meaning of Rivas’s

statements on the recorded calls to Gomez. Gomez also argued that the jury charge on the nature

of the conspiracy was erroneous, and that defense counsel was ineffective for failing to introduce

Rivas’s and Gomez’s cell phone records at trial. Judge Swain denied Gomez’s Rule 33 motion in

a memorandum order of September 20, 2007. This appeal followed.

DISCUSSION

I. Prejudicial hearsay.

The Federal Rules of Evidence prohibit as hearsay the receipt of out-of-court statements

offered to proved the truth of the matter asserted. See Fed. R. Evid. 801, 802. The government

argues, however, that the disputed testimony was admitted for a valid, non-hearsay purpose - to

provide background and context for the jury - and that it therefore is not hearsay. The

government’s claim is simply not credible. Indeed, the government in both its opening statement

and its summation explicitly argued the very hearsay use of the evidence which it now contends

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it was not offering.1 The bearing of Ryan’s testimony on Gomez’s guilt was clear and the

inference that the jury would draw from it—that Gomez was Rivas’s supplier in the transaction

for which Rivas was arrested—was inescapable. Ryan’s testimony that he (1) told Rivas to call

his supplier, (2) selected Gomez’s number from Rivas’s cell phone address book, (3) placed the

call, and (4) then handed the telephone to Rivas, clearly informed the jury that Rivas had told

Ryan that Gomez was his supplier. There was no other reasonable explanation why Ryan would

have selected Gomez’s number from Rivas’s address book.

In Ryan v. Miller , 303 F.3d 231 (2d Cir. 2002), we addressed a similar issue. There,

after questioning a co-conspirator, a detective told his colleague to advise the defendant of his

Miranda rights. In Ryan, we rejected the State’s contention that the detective’ testimony was

properly admissible as background information to show why the defendant was at the police

station and to explain the course of the investigation that led to his arrest in part because it was

not necessary to provide background, and it “was only relevant if we assume[d] its truth—that

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We are puzzled and dismayed by the government’s continued maintenance of this
position both before the district court and in this court. It bears repeating that:

The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935).

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[the co-defendant] accused [the defendant]—which we [could] not do.” Id. at 252-53. In this

case, the hearsay violation is even more clear than it was in Ryan, because in Ryan, there were

other reasonably plausible, non-inculpating explanations for the instruction to give a Miranda

warning. For example, the defendant’s co-conspirator might have told the police that the

defendant had information about the crime, but not that he participated in it. Alternatively, the

first detective might have told the second detective to give the warning merely because it was

good police practice. Conversely, here there is no such likely non-culpatory alternative

inferences to explain Ryan’s selection of Gomez’s number. Ryan’s testimony provides

background that would aid the jury in understanding why Gomez was called only if we assume

that Rivas told Ryan that Gomez was his supplier, which we cannot do. If the jury inexplicably

missed the obvious point of Ryan’s testimony, the Assistant United States Attorney (“AUSA”)

drove it home with her opening and summation.

The objected-to testimony was also completely unnecessary to inform the jury of the

background or to avoid confusion. Ryan’s testimony that Rivas was arrested and then made

several consensually recorded phone calls would have been sufficient background for the calls

themselves. Although hearsay may sometimes be admitted “to prove relevant facts other than the

truth of what was asserted,” this is not the case “when the evidence sought to be justified in its

nonhearsay use is on the unimportant issue of investigative background, and it has considerable

capacity in its improper application for substantial prejudice to the defendant on the crucial issue

of proof of guilt.” United States v. Johnson, 529 F.3d 493, 500 (2d Cir. 2008). In this case, the

main import of the challenged evidence is not what it furnished as background, but rather its

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demonstration that Rivas identified Gomez as his supplier.2

II. Waiver

The government next argues Gomez waived any error related to Ryan’s testimony by

failing to adequately object to the scope and substance of Ryan’s proposed testimony during

pretrial conferences. “[W]aiver is the ‘intentional relinquishment or abandonment of a known

right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.

458, 464 (1938)). A defendant who waives a claim of error may not raise it on appeal. See

United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009).

Ryan’s testimony was the subject of pretrial controversy. In an April 9, 2007, pretrial

conference, defense counsel objected to the admission of instructions Ryan had given Rivas for

the latter’s calls to Gomez. Counsel explained: “I have an objection to any testimony being

elicited from detective Ryan about what he instructed Mr. Rivas to do; therefore, I also have an

objection to the handwritten directions.” Defense counsel later explained that:

I have no objection to detective Ryan saying that earlier in the day, for whatever
reasons he provides, Mr. Rivas was arrested. He was brought down to law
enforcement headquarters . . . and sometime thereafter, he made a phone call that
was monitored and recorded, and here is the monitored and recorded conversation.

Counsel then made clear that if the government is permitted to:

do more, not only elicit testimony but also have the opportunity to
introduce this statement of instructions, it infers, implies, suggests
that Mr. Rivas had conversations with law enforcement, indicating

2
Although Ryan’s instruction to Rivas to call his supplier by itself included no hearsay,
the coincidence of that instruction with Rivas’s recorded telephone call to Gomez communicates
the same hearsay message to the jury - that Rivas identified Gomez as his supplier. Because the
government will surely use the recorded telephone conversation as evidence on retrial, and
because the fact of Ryan’s instruction has no importance (except when used improperly), the
district court should exclude the officer’s instruction.

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 and implicating Mr. Gomez’ [sic] involvement, which is a
background way of getting hearsay testimony in through
implication, without my having the opportunity to cross-examine
Mr. Rivas.

The court overruled Gomez’s objection to admitting the written instructions “and to testimony

consistent with [the written instructions] as to detective Ryan having instructed Rivas to make the

phone call.” It explained that “[t]here is nothing that is particularly suggestive of the content of

any conversation between Rivas and Ryan in these instructions . . . and they are relevant in

providing context for the telephone call and chronology.”

Later the AUSA indicated that “Mr. Rivas was also instructed to . . . make certain

phonecalls [sic] to certain people or at least to a person who fell within a particular description as

in the person who had supplied him with these . . . five thousand pills.” Defense counsel

responded:

There is an objection on the same grounds that I objected to the instructions.
Rivas having postarrest conversations and not being a witness in the case, the
statements that he makes to Detective Ryan at that time are hearsay and
inadmissible for their truth. The phone calls are in evidence. Now, according to
your Honor’s ruling, the written instruction that Detective Ryan gave him is going
to be in evidence.

Asked by Judge Swain whether defense counsel was “objecting to the introduction into evidence

of the alleged fact that . . . these were calls that were to be made to an alleged supplier?”, defense

counsel explained:

I think that any statements Rivas made to Detective Ryan before the phonecalls
[sic] are made are inadmissible because they are hearsay and because they will be
taken for their truth . . . proving that Gomez was, in fact, a supplier. And that’s
inadmissible hearsay, it would be treated as truthful by the jury and that’s my fear.

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The government attorney responded that she:

plan[ned] to ask the agent: Did you speak with Rivas? What instructions, if any,
did you give him?
What I expect the agent to say is something along the lines of I instructed
him to call the person he got the five thousand from and to ask him for more – to
ask him for two more and to ask him also for – to ask him if he wanted to receive
his money or say he had money for him. . . . The only really new thing that I’m
raising is the instruction to call the person that you got the five from.

Defense counsel replied:

If the purported testimony by Detective Ryan is: I instructed him to call “the
person” who supplied him the five thousand, I don’t object.
If the instructions are based on conversations I had with Rivas, I instructed him to
call Gomez, the person who supplied him with the five thousand, then I do.

The government agreed that it would not elicit testimony from Ryan that he instructed Rivas to

call Gomez, whom Rivas had identified as his supplier. Thus, at this point, it appeared that

everyone agreed as to the nature of the testimony Ryan could give.

However, the issue was apparently not settled to Judge Swain’s satisfaction because upon

her return to chambers, she instructed the government’s attorneys by facsimile, with a copy to

defense counsel, that the government attorney:

should address by letter to the Court the issue of why testimony to the effect that
Mr. Rivas phoned Mr. Gomez in response to a directive by Detective Ryan to
telephone Mr. Rivas’s supplier would not constitute evidence of a “testimonial”
out of court statement within the meaning of Crawford v. Washington, 541 U.S. 36
(2004), and Davis v. Washington, 126 S. Ct. 2266 (2006); see also U.S. v.
Basciano, 430 F. Supp.2d 87, 89-90 (E.D.N.Y. 2006).

The government responded that there was no Crawford problem because it did not intend

to argue based on the testimony that Rivas was instructed to call his supplier, and that Gomez was

Rivas’s supplier. It indicated that it would not object to an instruction that the jury could consider

the applicable portion of Ryan’s testimony only as “provid[ing] the necessary context for the calls

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between Gomez and Rivas, that is, to make clear to the jury why it is that Rivas telephoned

Gomez.” Ultimately, the judge drafted her own proposed instruction:

the testimony that you have just heard about instructions given to Mr. Rivas and
Mr. Rivas’s actions in response to those instructions is not being offered to
establish and is not to be considered by you as evidence that the defendant was in
fact, Mr. Rivas’s supplier. Rather, the evidence is offered for the more limited
purpose of explaining how it happened that Mr. Rivas made calls to the defendant.

In response to the proposed charge, defense counsel said: “[w]hile still maintaining my

objection to the testimony with regard to this in any way, in light of your ruling, I have no

problem with the curative instruction.”

The government argues, based on these exchanges, that Gomez knowingly abandoned his

objection. We disagree. Defense counsel’s initial statement was a global objection to anything in

Ryan’s testimony that “infers, implies, suggests that Mr. Rivas had [prior] conversations with law

enforcement, indicating and implicating Mr. Gomez’ [sic] involvement, which is a background

way of getting hearsay testimony in through implication, without my having the opportunity to

cross-examine Mr. Rivas.” Defense counsel later refined his objection, but never retreated from

his insistence that Ryan could not properly testify that Rivas had identified Gomez as his supplier.

The government’s argument that the defendant waived the hearsay objection is further

undermined by the fact that the government made no such contention in the district court.

Nor does the government succeed in demonstrating waiver by its argument that counsel

reached agreement before trial on the admission of evidence. The government’s evidence went

well beyond what had arguably been stipulated. The government’s lawyer assured the court and

defense counsel that she “would certainly caution [Ryan] from saying anything that would get

close to referencing the content of [the pre-phone call] conversations that he had with Mr. Rivas.”

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At trial, however, Ryan testified that “after the debriefing of Mr. Rivas, we placed several calls to

. . . Gomez.” Ryan also testified that he located Gomez’s phone number on Rivas’s phone,

something he would have done only if Rivas had identified Gomez as implicated in the scheme.

The AUSA also promised Judge Swain that in soliciting Ryan’s testimony about Ryan’s

instructions to Rivas to call “the person” who supplied Rivas with the ecstasy, “there is no one

who is going to say who that person is . . . .” Yet Ryan specifically testified that “Ellis Williams

Gomez” was the person to whom he placed a call just prior to testifying that Rivas was instructed

to call “the person who had given him the 5,000 pills.” In short, while the defendant may have

waived any objection to certain evidence, he did not waive the objection advanced on this appeal.

IV. Harmless error

Not every hearsay error requires a new trial. “Error is harmless if it is highly probable

that it did not contribute to the verdict.” United States v. Kaiser, __ F.3d __, No. 07-2365, 2010

WL 2607140, at *15 (2d Cir. July 1, 2010) (internal quotation marks omitted). The following

factors must be weighed in determining whether the wrongful admission of evidence constituted

harmless error: “(1) the overall strength of the prosecutor’s case; (2) the prosecutor’s conduct

with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted

testimony; and (4) whether such evidence was cumulative of other properly admitted evidence.”

United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007). “Where the erroneously admitted

evidence goes to the heart of the case against the defendant, and the other evidence against the

defendant is weak, we cannot conclude that the evidence was unimportant or was not a substantial

factor in the jury’s verdict.” United States v. Rigas, 490 F.3d 208, 222 (2d Cir. 2007).

The government contends that admission of Ryan’s testimony was harmless because the

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tapes constituted overwhelming evidence that Gomez had supplied the Ecstasy used in the sale for

which Rivas had been arrested and Gomez’s counsel admitted as much both in his requests to

charge and in his summation to the jury. We also consider whether the court’s limiting

instruction was sufficient, in combination with the admissible evidence, to establish harmless

error.

While the tape evidence—along with the unobjectionable portion of law enforcement

personnel’s testimony detailing the sale by Rivas and Pena to the confidential informant, their

subsequent arrest, and the consensual recording of phone calls to Gomez—was certainly

sufficient to support the jury’s verdict, it is hardly overwhelming as to Gomez’s involvement in

the charged conspiracy. A reasonable juror would likely have been compelled to believe that

Gomez and Rivas were discussing a drug deal. However, our hypothetical reasonable juror would

not have been compelled to conclude that Gomez was the supplier for the earlier sale. To make

the case for that proposition overwhelming, the government needed Ryan’s testimony that he

instructed Rivas to call the person who had supplied him the drugs for the 5,000 pill sale and that

Ryan then dialed Gomez’s phone number. Ryan’s testimony was not duplicative of the tapes

because the tapes do not clearly indicate that Gomez supplied the 5,000 pills. In addition,

physical evidence was lacking. Although palm prints and fingerprints were found on bags of pills

from the 5,000-pill transaction, none of them matched Gomez’s palm and finger prints.

We accord no importance to defense counsel’s request for a charge suggesting that the

jury might find that Gomez did supply the pills, or to his summation. The charge request was

made before trial when competent counsel was required to anticipate that the court might allow

the disputed testimony. Had the court disallowed the Ryan testimony, it is likely that the charge

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request would have been withdrawn. And, once Ryan’s testimony had been admitted, defense

counsel had to take into account the jury’s likely reaction to that testimony in his summation.

Finally, the court’s limiting instruction did not render admission of Ryan’s testimony

harmless. While we generally “presume that juries follow limiting instructions,” we will not do

so “where there is an overwhelming probability that the jury will be unable to follow the court’s

instructions and the evidence is devastating to the defense.” United States v. Becker, 502 F.3d

122, 130 (2d Cir. 2007)(internal quotation marks omitted). Presuming that limiting instructions

were followed is “inappropriate” when the “instructions required jurors to perform mental

acrobatics.” Id. (internal quotation marks omitted). Here the jury was confronted with an

instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’s

supplier despite the fact that there was no apparent reason for the testimony other than to show

that Ryan dialed Gomez’s number because Gomez had been identified by Rivas as Rivas’s

supplier. Further, the limiting instruction the court gave did not cover the most damaging portion

of Ryan’s testimony—that Ryan called Gomez’s number after instructing Rivas that he should

call the person who gave him the 5,000 pills. After Ryan’s testimony, the court instructed:

Ladies and Gentlemen, the testimony that you have just heard about instructions
given to Mr. Rivas and Mr. Rivas’s actions in response to those instructions is not
being offered to establish and is not to be considered by you as evidence that the
defendant was, in fact, Rivas’s supplier. Rather the evidence is offered for the
more limited purpose of explaining how it happened that Mr. Rivas made calls to
the defendant.3

Because it was Ryan who made the phone call after talking to Rivas and instructing Rivas to call

his supplier, the instruction left the jury free to infer that Ryan called Gomez because Rivas

3
This was also the charge given in the court’s final instructions to the jury.

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identified him as his supplier. And, even apart from the portion of the objectionable testimony not

covered by the instruction, it would take a certain amount of mental acrobatics for the jury to

separate considering Ryan’s testimony on the question of why the calls were made, which they

were allowed to do, from concluding that the calls were made because Rivas had told Ryan that

Gomez was his supplier. Hence, we hold that the court’s instruction, even in combination with

admissible evidence, did not render the hearsay violation harmless.

While we decide this case on hearsay grounds, we recognize that Gomez’s claim directly

implicates the Confrontation Clause and his right to confront his accusers in court. Ryan’s

testimony told the jury, by implication, that Rivas had accused Gomez of being his drug supplier.

We do not reach this overlapping claim only because the doctrine of constitutional avoidance

counsels against it once the evidentiary error is established. See Ashwander v. Tennessee Valley

Authority, 297 U.S. 288 (1936) (Brandeis, J. concurring); United States v. Bailey, 581 F.2d 341,

345 (3d Cir. 1978). We emphasize, however, that the very concerns embedded in the

Confrontation Clause are part and parcel of our harmless error analysis. In that analysis, we are

bound to consider “the importance of the wrongly admitted testimony,” and, as we have said,

Rivas’s untested accusation is significant. Kaplan, 490 F.3d at 123. The government was able to

convey Rivas’s statements on the central question of this criminal prosecution - through the

testimony of a police officer, no less - without producing Rivas himself at trial. The improperly

admitted evidence had substantial weight precisely because it went to the core of the government’s

case against Gomez, placing an unimpeachable accusation before the jury. Without a doubt, this is

what the Confrontation Clause seeks to guard against. Viewed simply as prejudicial hearsay, we

recognize the same dangers.

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 CONCLUSION

Because admission of Ryan’s testimony constituted inadmissible hearsay and did not

constitute harmless error, we vacate the conviction and remand for a new trial. In light of this

disposition, we do not address the alleged sentencing error.

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