United States Court of Appeals
For the First Circuit
No. 07-1880
UNITED STATES OF AMERICA,
Appellee,
v.
FERNANDO GONZALEZ-RAMIREZ, a/k/a Fernando,
Appellant, Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Merritt* and Howard, Circuit Judges.
George J. West for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney and Mary E.
Rogers, Assistant United States Attorney, were on brief, for
appellee.
March 25, 2009
*
Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. Appellant Fernando Gonzalez-
Ramirez ("Gonzalez") was convicted of conspiring to distribute and
aiding and abetting the distribution of cocaine. He was sentenced
to twenty years in prison. On appeal, Gonzalez claims that the
district court erred in denying his pre-trial motion for a
competency hearing and in admitting certain evidence. He also
asserts that the evidence was legally insufficient to convict him,
and that his sentence violated his constitutional rights. Finding
no error, we affirm the conviction and sentence.
I. FACTUAL BACKGROUND
We review the facts in the light most favorable to the
jury's verdict. United States v. Marin, 523 F.3d 24 (1st Cir.
2008). In January 2006, law enforcement authorities were
investigating two Rhode Island men, Estoredarico Bernard
("Belige"), and Eucraneo Severino ("Severino"). The investigation
included surveillance of a liquor store that Belige owned and
operated, an import/export business owned and operated by Severino,
and Severino's residence.
During this time period, Gonzalez lived in Denver,
Colorado, where he served as a middleman for Colorado-based cocaine
dealers tied to Mexican drug cartels. His role was to find
customers in the northeast United States. Belige was one such
customer.
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In late January, authorities eavesdropped on a telephone
call from Gonzalez to Belige, in which Gonzalez left the message,
"Uncle. I am Fernando. Call me back whenever you can to [a phone
number]." Two days later, Belige listened to the message three
times, and then returned the call, leaving the following message:
"Your uncle is calling you. Call me back." Gonzalez returned the
call and the two spoke for a short time. The conversation went as
follows:
Belige1 ("B"): Hello.
Gonzalez ("G"): Oh, Hello, uncle, how have you been?
B: Go ahead, go ahead, go ahead.
G: [Chuckles]
B: Where were you? Were you lost?
G: No, there wasn't any. [chuckles].
B: [chuckles]
G: Oh well things were calm.
B: Oh that's good.
G: Yeah.
B: Yeah.
G: So, are you working?
B: Yeah.
G: Yeah?
B: Yeah.
G: Do you want me to take a ride over?
B: Come over today.
G: [Chuckles] It's just that I'm getting it for you way
too high.
B: Oh, s--t, then you're not right.
G: Huh?
B: What . . . where are you driving?
G: Come again?
B: What's the mileage? How much are you driving?
G: For 19.
1
The briefs refer to this individual as "Belige." The
transcripts of the phone conversations use "Beligue." For the sake
of consistency, we use the former spelling.
-3-
B: What? You are crazy (laughter)(unintelligible) is here
this week.
G: Yeah?
B: Huh?
G: And what about 18 ½?
B: Huh?
G: 18 ½.
B: Well - it can be done.
G: Yeah?
B: To help you out.
G: Yeah, well let me - let me see if I can get ready
right away and I'll call you in the afternoon.
B: What?
G: That I'll be ready right away and I'll call you in the
afternoon.
B: Well come over here before the other one arrives.
G: Yeah, yeah. If I go, I'll be arriving in two days.
B: Oh, around Saturday. Saturday?
G: Yeah.
B: Okay.
G: Alright.
According to Central Falls, R.I., Detective Dorian Rave2,
the above conversation was actually rife with coded language
concerning the delivery of cocaine to Belige. For example, "there
wasn't any" was an indication that Gonzalez had been out of contact
because of a depleted cocaine supply; when he asked whether Belige
was "working," Gonzalez was asking whether Belige was dealing
drugs; finally, the discussion of "mileage" -- 18 ½ and 19 -- was
actually the price per kilogram in thousands of dollars.
True to his word, Gonzalez called Belige later the same
day. This shorter conversation went as follows:
B: Hello.
2
Rave was assigned to work with an FBI narcotics task force.
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G: Uh what's up uncle, it's me Fernando.
B: Talk to me Fernando.
G: Oh I couldn't do that. It didn't work out for me. I
need you to just to - just for 19.
B: Oh but it doesn't work out that way.
G: It doesn't work out? Yeah, but he'll leave in the
morning and the guy has them but I wasn't able to get
them.
B: What was that?
G: He didn't want to-go lower.
B: Damn, that's rough that way. That's not much profit.
G: Yeah?
B: There's no profit there.
G: What did you say?
B: That there's not much profit there.
G: Yeah.
B: Uh.
G: No, well think about it-if you want and I'll look for
another guy to see what comes up, if you're a go call
me that those are there.
B: Well then. Uh, then when would that be here?
G: Yeah, he's-he would be leaving in the morning and
arrives Saturday in the afternoon or Sunday morning.
B: Uh. Well, then come over to help you out.
G: Yeah?
B: Come over to help you out.
G: Oh then thank you man.
B: Okay.
G: Alright.
Detective Rave decoded this conversation to mean that
Gonzalez could go no lower than the $19,000 per kilogram price
discussed earlier in the day. Despite the protest about the small
profit, Belige agreed after Gonzalez informed him that a courier
would leave the next morning (a Wednesday) and deliver the cocaine
to Belige Saturday or Sunday.
On the following Monday, January 30, surveillance
personnel observed Severino enter Belige's liquor store. He left
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the liquor store in his car, followed by a car with Colorado
license plates. The Colorado car went into a warehouse at
Severino's place of business. The driver of the Colorado car --
later determined to be Gonzalez's cousin, Adelberto Gonzalez --
left about an hour later. He was followed by federal agents to a
nearby hotel. Later that day, agents approached Severino and
obtained permission to search the warehouse, where they seized a
duffel bag containing 11 sealed packages of cocaine, package
sealing materials, and gasoline soaked wrappings and rags, which
police theorized were used to protect the cocaine that had been
hidden in the Colorado car's gas tank during transit.
After seizing the cocaine, police arrested Belige and
Adalberto Gonzalez. At the request of the police, Belige called
appellant to tell him that he and appellant's cousin had been
arrested. Detective Rave subsequently called appellant,
identifying himself as a police officer. During this conversation
-- which took place in Spanish -- Gonzalez acknowledged that he had
discussed the arrest with Belige. He admitted his status as the
middleman for the Colorado distributors and the tasks he did for
them, as well as the fact that he had negotiated the sale to Belige
and enlisted his cousin to be the drug courier.
Gonzalez was indicted on one count of conspiring to
distribute and possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
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846, and one count of aiding and abetting the distribution and
possession with intent to distribute the same amount of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. §
2.
The jury convicted Gonzalez on both counts after a three-
day trial. He was sentenced to 240 months' imprisonment on each
count, to be served concurrently. This timely appeal followed.
II. LEGAL ANALYSIS
A. Competency
Gonzalez first argues that he is entitled to a new trial
because the district court wrongfully denied his request for a
competency examination and the related request for a continuance.
The relevant facts may be sketched briefly.
On the day of jury selection, Gonzalez arrived at court
in his jail-issued clothes, contrary to the advice of his attorney
and the magistrate judge, who also discussed with him the potential
negative ramifications of his choice of attire. Gonzalez said
simply that he "just wanted to" wear the jail clothes. His
attorney indicated that Gonzalez was going forward to trial against
his advice -- and despite "strong" evidence against him -- because
Gonzalez feared for his family's safety from members of the drug
cartel with whom he had associated if he pled guilty and
cooperated. A jury was selected, and trial was scheduled to begin
two days later, February 8, 2007.
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The next day, however, defense counsel filed motions
seeking a competency hearing for Gonzalez and a continuance. The
basis for the motions was an incident which occurred at the
detention facility where Gonzalez was being held, in which he cut
his wrists seriously enough to require transport to a hospital and
sutures to repair the damage. He was seen by a staff psychologist
before being taken to the hospital. Both the apparent suicide
attempt and Gonzalez's prior refusal to wear civilian clothes to
court were given as reasons to question Gonzalez's competency to
stand trial.
The district court held a brief hearing3 on the
competency issue. The judge asked defense counsel whether a pre-
hearing conversation with Gonzalez demonstrated that he was unable
to understand why he was in court, unable to communicate with or
assist defense counsel or unable to participate in the trial.
Counsel indicated that Gonzalez knew why he was in court and that
he was communicating, although "he might not be focused on
assisting counsel." The judge also asked a Deputy Marshal with
knowledge of the incident for information on Gonzalez. He stated
that Gonzalez had told the staff psychologist during a five-minute
examination that he was not seeking to end his life, and that he
3
A full-blown hearing, pursuant to 18 U.S.C. § 4241(a), would
involve the presentation of evidence, generally including testimony
of mental health professionals after examining the defendant. See,
e.g., United States v. Soldevila-Lopez, 17 F.3d 480 (1st Cir.
1994).
-8-
was instead reacting to his pre-trial confinement and fears for his
family's safety. The Marshal also told the judge that jail
personnel with whom he had spoken had told him that Gonzalez
understood "what's going on," and had not acted in any sort of
delusional way. Finally, the judge spoke directly to Gonzalez, who
said that he understood the roles of the judge, jury and attorneys.
The court denied both the motion to continue and the
request for a competency examination and hearing. She found
"absolutely no indication . . . that this Defendant has in the past
exhibited any symptoms of mental disease or defect." She added
that she found no "indication that [Gonzalez] is now mentally
incompetent, that is, unable to understand the nature and
consequences of the proceedings . . . or to assist properly in his
defense." The judge also noted the stress Gonzalez was under due
to the charges against him, and concluded that his apparent suicide
attempt alone, without any other indicia of a mental disease or
defect, was insufficient to warrant a competency evaluation.
The court re-visited the competency issue after the
jury's verdict, in connection with Gonzalez's motion for new trial.
At that time, the court considered information in the Presentence
Report prepared by the Probation Department. In an interview,
Gonzalez denied any history of mental illness, said that his
suicide attempt was a result of his "situation," and was "out of
character" for him. He also denied any subsequent suicidal
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impulses, noting that while he was emotionally upset about his
conviction and worried about his family, he was not depressed and
would not harm himself. In denying the new trial motion, the
district court reiterated its pre-trial decision, further
supporting the decision with the observation that Gonzalez had
communicated with his counsel during the trial.4
A defendant's due process right to a fair trial includes
the right not to be tried, convicted or sentenced while
incompetent. United States v. Drope, 420 U.S. 162, 172-73 (1975).
Pursuant to 18 U.S.C. § 4241(a), the district court must have a
hearing "if there is reasonable cause to believe that the defendant
may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable
to understand the nature of the proceedings against him or to
assist properly in his defense." See also Dusky v. United States,
362 U.S. 402 (1960). We review the district court's decision not
to hold a full competency hearing for abuse of discretion. We will
4
While Gonzalez's one self-abusive incident should not be
discounted, in our view neither the judge's amply supported
findings nor the defendant's own statements suggest the "serious
mental illness" that our concurring colleague finds to be present.
Additionally, we do not agree that the concurrence's unadorned
description of the defendant's crimes as "nonviolent" adequately
captures the risks associated with significant drug distribution
operations, either for the authorities who investigate them or for
society at large. See, e.g., United States v. Scott, 270 F.3d
30,41 (1st Cir. 2001) (although large-scale drug trafficking may
itself be nonviolent, the crime is commonly associated with
violence).
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affirm so long as there was a sufficient evidentiary basis to
support the decision. United States v. Bruck, 152 F.3d 40, 46 (1st
Cir. 1998).
Gonzalez points to Soldevila-Lopez, in which we reversed
the district court's decision to deny a continuance and
psychological evaluation of a defendant awaiting sentencing. 17
F.3d at 490. In that case, however, the district court had already
granted the defendant's motion for a hearing and evaluation but
then denied a subsequent request for further examination to respond
to a court appointed psychologist's eleventh-hour addendum that the
defendant was malingering. Id. at 482. We found error in the
denial of the request for follow-up in light of the new information
from the psychologist. Id. at 489. In addition, not only was the
trail of events in Soldevila-Lopez decidedly dissimilar to those
presented here, but also the defendant in that case had a history
of psychiatric illness and had been under medical care for his
condition, two factors not present here.
The district court addressed both Gonzalez and his
attorney before the trial and again after the verdict, in
connection with his motion for new trial. The salient details of
those inquiries have already been laid out, and in our view the
trial judge's conclusions were well-supported by the evidence
before her. Gonzalez had no prior history of mental health
problems. He was able to communicate with the court before trial,
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and he indicated his understanding of the proceedings about to
begin. Defense counsel provided no indication that Gonzalez would
be unable to participate in his defense, and in fact the court
observed Gonzalez doing so. The court also had the benefit of the
information from the Marshal, the prison psychologist and the
probation department interview. Against this backdrop, we conclude
that the district court was not required to order a competency
hearing and thus did not abuse its discretion in denying either the
motion for a hearing or the continuance motion that was predicated
on the need for an evaluation and hearing. The court's rulings
were not an abuse of discretion.
B. Evidentiary rulings
Gonzalez claims that evidence was improperly admitted
against him. We review the district court evidentiary rulings for
abuse of discretion. United States v. DeCologero, 530 F.3d 36, 58
(1st Cir. 2008).
First, Gonzalez argues that the eleven packages of
cocaine seized at the warehouse, along with the packaging
materials, were improperly admitted into evidence because there was
no "relevant connection" between those items and Gonzalez. This
argument is, at least in part, premised on a claim that Detective
Rave's testimony should have been excluded because he was not
sufficiently proficient in Spanish such that his translation of
Gonzalez's confession could be deemed accurate, and that Rave's
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decoding of the intercepted phone calls between Gonzalez and Belige
was inadmissible.
Turning first to Detective Rave, we note that the
district court conducted a voir dire, at which it was determined
that Spanish is Detective Rave's native language, he speaks it
fluently and understands multiple dialects, and Spanish is spoken
in his own household. He also testified that he has served as a
translator many times. Gonzalez relies on the fact that Rave had
no formal Spanish education since grammar school, and that he is
not certified as a translator or interpreter. He also argues that
Rave's testimony is legally flawed because he waited more than two
weeks to transcribe his notes of his conversation with Gonzalez.
We discern no abuse of discretion in the court's decision
to allow Detective Rave's testimony. The court was presented with
considerable evidence of Officer Rave's fluency. Gonzalez provides
no legal support for his apparent theory that only certified
translators may provide such testimony, nor can we locate any. In
the end, we see this argument as one more properly directed to the
weight of the evidence, not its admissibility. See Cummings v.
Std. Register Co., 256 F.3d 56, 65 (1st Cir. 2001) (while
shortcomings in certain testimony might reduce its probative value,
they do not necessarily render it inadmissible). We therefore find
no abuse of discretion.
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Similarly, we reject Gonzalez's claim that the trial
judge should have excluded Detective Rave's interpretation of the
coded language in the intercepted phone calls. Citing no
authority, Gonzalez essentially argues that the jury should have
rejected Rave's understanding of ambiguous conversations. This is
a classic weight versus admissibility argument that goes nowhere.
There was no abuse of discretion in admitting Rave's testimony.
Having disposed of these preliminary evidentiary claims,
our conclusion as to the admissibility of the cocaine and its
packaging is not difficult to reach. Gonzalez's recorded
conversations with Belige placed him squarely in the deal, and his
confession to Rave was all the evidence necessary to show that his
cousin, acting on Gonzalez's orders, brought the cocaine to Rhode
Island, where it -- and the wrappings used to hide it during
transit -- were located. Gonzalez's rebuttal argument is
ostensibly limited to noting that nobody actually saw the cocaine
unloaded from the cousin's vehicle inside the warehouse. The jury
rejected this argument, as it was free to do. Accordingly, there
was no error in the admission of the cocaine or packaging.
C. Sufficiency of the evidence
Because the entirety of Gonzalez's sufficiency argument
is premised on the evidentiary claims we have already rejected, we
have little trouble concluding that, in the light most favorable to
the verdict, a rational jury could have found him guilty beyond a
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reasonable doubt. United States v. Garcia-Carrasquillo, 483 F.3d
124, 129-30 (1st Cir. 2007). In sum, Gonzalez was overheard
arranging the drug deal, the drugs were seized, and he confessed
his involvement. The verdict was thus sufficiently supported by
the evidence.
D. Sentencing
Gonzalez makes several arguments regarding his twenty-
year sentence. First, he claims that the prosecution, by filing a
sentence enhancement information5 on the eve of trial,
unconstitutionally burdened his right to a jury trial by
essentially penalizing him for choosing to go to trial. The
information, which noted two prior drug felony convictions under
California law, subjected Gonzalez to a mandatory minimum sentence
of 20 years. See 21 U.S.C. § 841(b)(1)(A). Gonzalez supports his
argument by relying on United States v. Green, 346 F. Supp. 2d 259
(D. Mass. 2004), in which the district court imposed a reduced
sentence in part because the government changed its position on
various sentence enhancements after plea bargaining collapsed. Id.
at 329-30. Gonzalez, however, fails to note that to the extent
relevant here, we reversed the district court's sentencing in Green
in United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005). Our
comment there is dispositive here: "A defendant simply has no
5
Under 21 U.S.C. § 851, the government must file an information
with the court if it intends to seek an increase in a defendant's
sentence based on a prior conviction.
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right to a sentence, after trial, that is as lenient as a sentence
he could have had earlier in a plea bargain." Id. at 26-27. See
also, United States v. Jenkins, 537 F. 3d 1, 3-4 (1st Cir. 2008)
(absent evidence of prosecutorial vindictiveness, there is no due
process violation when government files § 851 information after
failure to reach plea agreement in which government would have
agreed not to file information).
Next, also relying on Green, Gonzalez argues that the use
of the § 851 information unconstitutionally violates the Separation
of Powers Doctrine, because it places too much sentencing power in
the hands of the prosecutor. Gonzalez cites no pertinent authority
for his position, which has been explicitly rejected by at least
three other circuits. See United States v. Watford, 468 F.3d 891,
911 (6th Cir. 2006); United States v. Jensen, 425 F.3d 698, 707
(9th Cir. 2005); United States v. Cespedes, 151 F. 3d 1329, 1332-34
(11th Cir. 1998). Each of these cases relied on United States v.
LaBonte, 520 U.S. 751 (1997), in which the Court noted that a
prosecutor's ability to affect sentencing "is similar to the
discretion a prosecutor exercises when he decides what, if any,
charges to bring against a criminal suspect. Such discretion is an
integral feature of the criminal justice system, and is
appropriate, so long as it is not based on improper factors." Id.
at 761-62. We join the three other circuits in holding no viable
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Separation of Powers claim is presented by the defendant's
argument.
Gonzalez next argues broadly that mandatory minimum
sentences violate his right to due process because they remove the
trial judge's sentencing discretion. However, it is beyond cavil
that Congress has the power to set statutory minimum and maximum
sentences to which courts must adhere. Chapman v. United States,
500 U.S. 453, 467 (1991).
Finally, Gonzalez argues that his sentence must be
reversed because his prior convictions were not proved beyond a
reasonable doubt. In so doing, he argues against the continuing
viability of Almendarez-Torres v. United States, 523 U.S. 224
(1998). This argument is a non-starter, for "whatever the
continuing viability of Almendarez-Torres, we have previously held
that we are bound to follow it until it is expressly overruled."
United States v. Jimenez-Beltre, 440 F.3d 514, 520 (1st. Cir. 2006)
(en banc), cert. denied, 127 S. Ct. 928 (2007).
Appellant's arguments having been rejected, his
conviction and sentence are affirmed.
-Concurring Opinion Follows-
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MERRITT, Circuit Judge, concurring. I concur in the
Court’s opinion, but I agree with the District Court that the
prosecution’s decision to seek a mandatory sentence of 20 years
under 21 U.S.C. § 851 passes all understanding. The District Court
said: “I recognize you [AUSA] do this at the behest of your
superiors. But I can’t sit here today and impose this sentence
without saying it’s wrong, and you can take that message to whoever
you think might listen.” The Judicial Conference of the United
States for almost 20 years, and the Sentencing Commission for
almost 10 years, have pleaded with the judiciary committees of
Congress to do something about the serious injustices that these
long, mandatory minimum sentences impose — to no avail. This is a
20-year sentence for a nonviolent crime by a defendant with a
serious mental illness. His incarceration will cost the American
taxpayers in today’s dollars somewhere between $600,000 and
$1,000,000. With some carefully monitored rehabilitation
treatment, it is possible that he could be released in just a few
years. Like the District Judge, I think that the prosecution’s
purely discretionary decision to ratchet up this sentence to 20
years is misguided and ought to be reconsidered when the judgment
becomes final.
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