United States Court of Appeals,
Eleventh Circuit.
No. 95-4422.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mario M. GONZALEZ, a.k.a. Nene, a.k.a. Alex Garcia, a.k.a. Jorge Perez, a.k.a. Jesus
Hernandez, a.k.a. El Nene, a.k.a. Miguel, a.k.a. Mario Gonzalez, a.k.a. Alex Pino, a.k.a. Angelberto
Marcias, Defendant-Appellant.
Sept. 26, 1997.
Appeal from the United States District Court for the Southern District of Florida. (No. 93-418-CR-
DLG), Donald L. Graham, Judge.
Before ANDERSON and EDMONDSON, Circuit Judges, and ROSENN*, Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Late in 1989, warrants for the arrest of the defendant, Mario M. Gonzalez, were issued in the
District of Puerto Rico and the Southern District of Florida. The U.S. Marshal's Service began
looking for Gonzalez shortly thereafter. In their search for Gonzalez, the marshals monitored
telephone calls, surveilled friends and family members, and interviewed informants. As a result of
these efforts, the marshals came to believe that Gonzalez was registered at the Princess Motel, Room
268, in Miami, Florida under the false name of "Jorge Perez."
Deputy Marshals Branyon and McDermott—along with other marshals—therefore put the
Princess Motel under surveillance. Branyon checked the parking lot and interviewed the front desk
clerk, who was unable to identify a picture of Gonzalez as Jorge Perez, the occupant registered in
Room 268. Branyon compared the handwriting of the person who had checked into Room 268 with
a sample of Gonzalez's. Branyon concluded that there were similarities and that, based on
everything he had seen, it was likely that Jorge Perez was really Gonzalez. Branyon ordered officers
to the Princess Motel so that the entrances could be blocked, and Room 268 was monitored.
*
Honorable Max Rosenn, Senior U.S. Circuit Judge for the Third Circuit, sitting by
designation.
Around 3:00 a.m., Branyon returned to the front desk and observed that the control panel
indicated that the door between Room 268 and the adjoining parking garage was being opened. He
informed the other officers of this development. A short time later, Branyon observed a red Blazer
leave Room 268's parking spot. The Blazer proceeded through the parking lot until its path was
blocked by a City Police car and a U.S. Marshal vehicle. The Blazer stopped; Agent Branyon
yelled "Police. Everyone out of the vehicle."
At this point, the driver of the Blazer endeavored to flee the parking lot, seemingly without
regard for persons and vehicles in its path. The agents on the scene began firing at the Blazer. The
Blazer nearly hit two different agents; then the Blazer paused momentarily at a chain-link fence,
behind which sat two U.S. Marshal vehicles blocking the Blazer's path. The Blazer's occupants were
again instructed to stop and to get out of the vehicle; instead, the Blazer repeatedly rammed the
fence, finally breaking through and ramming the Deputy Marshals' cars.
The Blazer eventually ran aground on a stump; its occupants were apprehended and arrested.
A search of the car revealed a briefcase containing a pipe bomb. Gonzalez made post-arrest
statements indicating that he knew he was wanted by the police. Three days later, Deputy Marshal
Godsk revisited the Blazer at the impound lot and searched the vehicle. When Godsk removed the
cup holder from the console, he discovered a Glock pistol.
A grand jury indicted Gonzalez for (1) forcibly assaulting three United States Marshals by
use of a dangerous weapon (the Blazer); (2) knowingly carrying a destructive device in relation to
a crime of violence; (3) possessing a firearm while a fugitive from justice, and (4) knowingly
possessing a destructive device not registered to him.
Gonzalez pled not guilty, and his case was tried to a jury. Gonzalez was found guilty by the
jury on all counts and appealed.
Discussion1
1
In addition to the challenges to his convictions discussed in our opinion, Gonzalez also raises
two other points that we can address summarily. First, Gonzalez argues that the district court
erred in allowing the government to present testimony about Olga Capon's (a known associate of
2
A. Sufficiency of the Evidence
Gonzalez challenges several of his convictions on the ground that the government's evidence
was insufficient to establish the offenses charged. Sufficiency of the evidence is a question of law,
reviewed de novo; evidence is sufficient if "viewed in the light most favorable to the government,
the jury could have found defendant guilty beyond a reasonable doubt." United States v. Farris, 77
F.3d 391, 394 (11th Cir.1996). The evidence need not "exclude every reasonable hypothesis of
innocence." Id. at 395.
1. Forcible Assault of a U.S. Marshal and Carrying a Destructive Device During and In
Relation to the Assault
Section 111 of Title 18 provides, in pertinent part:
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a U.S.
Marshal] while engaged in or on account of the performance of his official duties ... shall be
fined under this title or imprisoned not more than three years, or both.
The attempted or threatened injury must be "an intentional act wilfully done without legal
excuse." Burke v. United States, 400 F.2d 866, 867 (5th Cir.1968) Gonzalez argues that the
evidence does not establish that he intentionally directed force at the three officers he allegedly tried
to assault with his Blazer. Instead, Gonzalez argues that the evidence is just as consistent with his
contention (made at trial) that he was "simply driving, head down, attempting to flee."
Gonzalez) arrest and about her passenger flashing a gun at Agent McDermott. We conclude that
the district court did not abuse its discretion in admitting this evidence.
Second, Gonzalez contends that the district court erred in denying his motion to
suppress his post-arrest statements and evidence seized from the Blazer because agents
lacked probable cause to believe that he was in the vehicle when they attempted to stop
it. The government argues that the marshals' stop of the Blazer was justified as a Terry
stop for the purpose of determining whether Gonzalez was the driver, and that this
reasonable suspicion ripened into probable cause when Gonzalez attempted to flee and to
assault the marshals with the Blazer.
Gonzalez's contention is refuted by the evidence: There were many reasons for
the officers to suspect both that Gonzalez was at the Princess Motel and that he was
driving a red Blazer. Also, one of the agents positively identified Gonzalez when the
Blazer stopped during the attempted flight. To say the least, the officers had probable
cause at that point to arrest Gonzalez; the evidence and post-arrest statements were
admissible. United States v. Blackman, 66 F.3d 1572 (11th Cir.1995).
3
The three U.S. Marshals—McDermott, Moran, and Thornall—that Gonzalez allegedly
assaulted with the vehicle each testified in detail about the circumstances that led them to think that
the Blazer's driver intentionally tried to hit them in his attempt to flee the parking garage. Based on
these officers' testimony, a reasonable jury could easily conclude that Gonzalez's acts in driving the
Blazer at the marshals were intentional. The evidence, therefore, was sufficient to support this
conviction. See United States v. Martin, 961 F.2d 161, 163 (11th Cir.1992).
Gonzalez also contends that the evidence was insufficient to support his 18 U.S.C. § 924(c)
conviction for using or carrying a destructive device during and in relation to a crime of violence
(the assault). He argues that the destructive device—here, a pipe bomb—was merely present in the
Blazer, not used in relation to the assault on the marshals. Gonzalez points to the lack of
fingerprints found on the bomb, the location of the pipe bomb inside a briefcase wedged underneath
the passenger seat of the Blazer, the fact that no witnesses saw the bomb until after the assault had
ended, and the conflicting testimony on whether anyone had seen Gonzalez reaching toward the
briefcase in the Blazer.
At least one marshal—Godsk—testified, however, that when the Blazer stopped, Gonzalez
seemed to reach to his right "as though he was [sic ] attempting to get something with his right
hand...." This evidence, combined with the pipe bomb's location in the Blazer, was sufficient for
the jury to infer that Gonzalez was reaching for the pipe bomb, thus carrying it "in relation to" the
assault.
2. Fugitive in Possession of a Firearm
Gonzalez argues that the evidence proffered in support of his conviction under 18 U.S.C.
§ 922(g)(2) for being a fugitive in possession of a firearm failed to prove that he was either: (1) a
"fugitive" as defined by the statute, or (2) that he knowingly possessed the gun.
The term "fugitive from justice" is defined in 18 U.S.C. § 921(a)(15) as "any person who has
fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal
proceeding." Gonzalez argues that, although he was indicted in Puerto Rico on federal drug charges,
4
the government produced no evidence that he fled to the State of Florida. He contends that, because
he need not have been physically present in Puerto Rico to have committed the alleged crimes, the
indictment alone cannot support a finding that he was ever outside of Florida.
The government responds that "Gonzalez's argument misses the mark because the relevant
inquiry is whether Gonzalez purposely stayed away from Puerto Rico to avoid the charges pending
against him." For support, the government cites United States v. Fonseca-Machado, 53 F.3d 1242,
1243-44 (11th Cir.1995), in which we stated that "[m]ere absence from the jurisdiction in which a
crime occurred does not render the suspect a fugitive from justice; he must be found to have
absented himself from the jurisdiction with the intent to avoid prosecution."
Here, the evidence was insufficient to allow a reasonable jury to conclude that Gonzalez was
ever in Puerto Rico, much less that he intentionally absented himself—that is, took himself
away—from Puerto Rico to avoid prosecution there. In fact, the government was unable to produce
evidence that Gonzalez had ever been in Puerto Rico or, for that matter, had been outside of Florida
during the pertinent time. Gonzalez, therefore, does not meet the statutory definition of "fugitive";
his conviction under 18 U.S.C. § 922(g)(2) is reversed.
3. Possession of an Unregistered Destructive Device
Gonzalez also argues that his conviction for possession of an unregistered destructive device
under 26 U.S.C. § 5861(d) is based on insufficient evidence. He says the government failed to prove
that the pipe bomb was unregistered in the National Firearms Registration and Transfer Record.
Gonzalez's contention is that the records search conducted by the government only searched for
registration in Gonzalez's name and in five of his seven known aliases. The defendant argues that
omission of two aliases rendered the search unreliable and inadmissible; it demonstrated lack of due
diligence.2 His contention, however, is meritless. Gonzalez has cited no statute or case—and we
2
The government argues that Gonzalez failed to object to the certificate of nonregistration
from the National Firearms Registration and Transfer of Records search on the grounds of lack
of completeness and failed to cross-examine the agent who conducted the search concerning the
deficiencies, thereby waiving this claim. The defendant, however, did object to the certificate on
grounds of "hearsay, denies confrontation, no proper predicate, no indicia of reliability." This
5
are aware of none—that requires the government to do more than conduct a records search under
a defendant's legal name to establish (for the purpose of sufficiency-of-evidence review) the
unregistered nature of his firearm. And in this case, the government showed more: several aliases
were also checked. Gonzalez's conviction on this charge is supported by sufficient evidence.
B. Jury Instructions
Gonzalez next contends that he should receive a new trial because the jury instructions were
deficient. He alleges three deficiencies in the jury instructions: (1) that the district court failed to
instruct on obstructing, resisting or opposing a federal officer in the service of process under 18
U.S.C. § 1501,3 which Gonzalez argues is a lesser included offense of 18 U.S.C. § 111;4 (2) that the
objection was sufficient to preserve the present objection.
3
Section 1501 provides, in pertinent part:
Whoever knowingly and willfully obstructs, resists, or opposes any officer
of the United States, or other person duly authorized, in serving, or attempting to
serve or execute, any legal or judicial writ or process of any court of the United
States, or United States commissioner; or
Whoever assaults, beats, or wounds any officer or other person duly
authorized, knowing him to be such officer, or other person so duly authorized, in
serving or executing any such writ, rule, order, process, warrant, or other legal or
judicial writ or process—
Shall, except as otherwise provided by law, be fined under this title or
imprisoned not more than one year, or both.
4
Section 111 states, in pertinent part:
(a) In general.—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this title [including U.S.
Marshals] while engaged in or on account of the performance of official
duties ... shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more than one
year, or both, and in all other cases, be fined under this title or imprisoned
not more than three years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts described in
subsection (a), uses a deadly or dangerous weapon (including a weapon intended
to cause death or danger but that fails to do so by reason of a defective
component) or inflicts bodily injury, shall be fined under this title or imprisoned
6
district court failed to instruct the jury that its verdict on the assault of federal marshals charge must
be unanimous; and (3) that the district court failed to instruct on the defense's theory of self-defense.
The district court's refusal to deliver requested instructions constitutes reversible error only
if (1) the requested instruction is correct, (2) it is not substantially covered by other instructions
delivered, and (3) the proposed instruction is so vital that failure to give the requested instruction
seriously impaired the defendant's ability to defend. United States v. Opdahl, 930 F.2d 1530, 1533
(11th Cir.1991).
The district court refused the defendant's request to charge on 18 U.S.C. § 1501 as a lesser
included offense of section 111. The Supreme Court in Sansone v. United States, 380 U.S. 343, 348-
50, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965), developed a framework for analyzing whether a
lesser included offense charge was required:
[I]n a case where some of the elements of the crime charged themselves constitute
a lesser crime, the defendant, if the evidence justifies it ... is entitled to an instruction which
would permit a finding of guilt of a lesser offense. But a lesser-offense charge is not proper
where, on the evidence presented, the factual issues to be resolved by the jury are the same
as to both the lesser and the greater offenses ... A lesser-included offense instruction is only
proper where the charged greater offense requires the jury to find a disputed factual element
which is not required for conviction of the lesser-included offense.
Id. (internal quotation marks and citations omitted).
Here, the element of force was required for a conviction under section 111 but not for
conviction under section 1501. This element (force) was disputed by Gonzalez. Under Sansone,
then, the jury should have been instructed on section 1501 as a lesser included offense. Cf. United
States v. Giampino, 680 F.2d 898, 901 (2d Cir.1982) ("There is no dispute that a § 1501 offense was
"included' in the § 111 offense. Every element required to establish [the defendant's] obstruction
of [the federal agent] in violation of § 1501 was also essential for establishment of [the defendant's]
guilt under § 111. Thus, if the prosecution proved a violation of § 111, it necessarily also proved
a violation of § 1501."). We vacate Gonzalez's conviction under section 111 and remand it for a new
trial.
not more than ten years, or both.
7
Also, because Gonzalez's section 111 conviction served as the underlying "crime of
violence" for Gonzalez's conviction for use or carrying a destructive device during and in relation
to a crime of violence, Gonzalez's section 924(c) conviction must also be vacated and remanded for
another trial.
Finally, because we reverse these convictions and remand for new trial due to the lack of a
lesser included offense instruction, the district court's other alleged instructional deficiencies—even
if meritorious—could not afford Gonzalez any greater relief. We need not, therefore, decide those
issues.5
C. Prosecutorial Misconduct
Gonzalez alleges that instances of prosecutorial misconduct necessitated a mistrial.
Depending on the circumstances, a mistrial could have barred further prosecution. United States v.
Crouch, 566 F.2d 1311, 1317 (5th Cir.1978) (holding double jeopardy bars retrial when
prosecutorial misconduct forces defendant to move for mistrial). Therefore, we address the mistrial
issue, although one of Gonzalez's convictions has already been reversed and a new trial has been
ordered by us on two of Gonzalez's other convictions. First, Gonzalez points to the prosecutor's
attempt to question the marshals about whether they had ever fired their weapons before in the
5
We note, however, that neither of the other two alleged instruction errors were likely to
afford Gonzalez relief. First, about the unanimity instruction, Gonzalez failed to object at trial to
the absence of an unanimity instruction; therefore, we review only for plain error. The Supreme
Court has laid out a three-part analysis for plain error: (1) there must be error; (2) it must be
plain; and (3) the error must affect substantial rights. United States v. Olano, 507 U.S. 725,
730-32, 113 S.Ct. 1770, 1775-77, 123 L.Ed.2d 508 (1993).
Here, Gonzalez cannot show that his challenge to the unanimity instruction would
have merit on any basis, much less the plain error standard of Olano. The judge
specifically instructed the jury that the verdict must be unanimous. Gonzalez's proposed
unanimity instruction, therefore, was substantially covered by the other instructions
delivered by the district court judge.
Second, about the district court's refusal to give Gonzalez's proposed theory of
defense instruction—that the use of force was justified to protect himself against the
officers' use of excessive force, the proposed instruction is not contained in the record;
our review of it is therefore precluded. See United States v. Diaz, 916 F.2d 655, 658
(11th Cir.1990) (holding absence of proposed instruction from record alone warrants
affirmance on challenge to failure to give instruction).
8
course of their duties and about why the marshals had so much fire power at the hotel when they
went to arrest Gonzalez. Second, Gonzalez points to the prosecutor's closing argument, in which
the prosecutor mentioned Gonzalez's "personal war with the United States" and in which the
prosecutor asserted facts not established by the evidence.6
"To find prosecutorial misconduct, a two-pronged test must be met: (1) the remarks must
be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant."
United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). That the pertinent remarks of the
prosecutor were improper is undisputed; the sole issue, then, is whether they substantially affected
Gonzalez's rights. "[C]onsiderable weight to the district court's assessment of the prejudicial effect
of the prosecutor's remarks and conduct" must be given. United States v. Herring, 955 F.2d 703,
710 (11th Cir.1992).
Here, the district court properly concluded that Gonzalez has shown no substantial prejudice.
First, Gonzalez's objections to the prosecutor's questioning of the marshals were sustained by the
district court judge. Second, the judge gave a curative instruction, stating:
Well, ladies and gentlemen, the arguments of counsel are just that. They are arguments.
They are not evidence. they have nothing to do with the facts of the case as you determine
it. So, I'm going to instruct you to base your decisions on the evidence as you decide the
facts.
For the prosecutor's misstatements about the identification of the cousin, the fingerprints on
the briefcase, and Gonzalez's flight from Puerto Rico, Gonzalez failed to object to these comments.
So review of these remarks is limited to the plain error standard—a standard he cannot meet. Also,
if error occurred, it was cured by the district court in this case; the district court instructed the
jury—at least twice—that the prosecutor's arguments were not evidence and that the jury was to
decide Gonzalez's guilt based solely on the evidence. As the government noted, "the district court
either admonished the prosecutor, sustained Gonzalez's objection, offered a curative instruction to
6
In his closing argument, the prosecutor identified the passenger in Olga Capon's car as
Gonzalez's cousin, argued that Gonzalez's fingerprints were found on the pipe bomb, and
asserted that Gonzalez had fled to Puerto Rico. None of these "facts" were established by the
evidence presented to the jury.
9
the jury, or responded to the error with some combination of these actions." Viewing the record in
its entirety, the prosecutor's conduct did not demand a mistrial; and no reversible error has been
shown.
Conclusion
In sum, we reverse Gonzalez's conviction for possession of a firearm while a fugitive from
justice; Gonzalez is now entitled to acquittal on this charge. We vacate and remand for retrial
Gonzalez's convictions for forcibly assaulting U.S. Marshals by use of a dangerous weapon and for
knowingly carrying a destructive device in relation to a crime of violence. Finally, we conclude that
the district court committed no other reversible error and affirm Gonzalez's conviction for knowingly
possessing a destructive device not registered to him.
AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED IN PART.
10