United States v. Gomez

United States Court of Appeals
For the First Circuit

No. 12-1372

UNITED STATES,

Appellee,

v.

CLARVEE GOMEZ, a/k/a Tony,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]
[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Robert E. Toone, with whom Foley Hoag LLP was on brief, for
appellant.
Daniel C. Taylor, Attorney, U.S. Department of Justice, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

May 3, 2013
 LYNCH, Chief Judge. Clarvee Gomez was convicted by a

jury of conspiracy to distribute 500 grams or more of cocaine. He

was sentenced by the court to a ten-year mandatory minimum term of

imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii), based on the

court's finding that the crime involved eight kilograms of cocaine.

He challenges both his conviction and sentence.

Gomez's primary argument as to his conviction is that the

denial of his motion to suppress evidence seized from him in

Lawrence, Massachusetts when he left the scene of a drug deal was

error because probable cause was lacking. We disagree. His

primary argument as to sentencing is that the ten-year mandatory

minimum sentence, triggered by five kilograms or more of cocaine,

offends Apprendi v. New Jersey, 530 U.S. 466 (2000), where the jury

found his offense involved only 500 grams or more of cocaine and no

greater amount was charged in the indictment. We have already

rejected the sentencing argument.1 See United States v. Goodine,

326 F.3d 26, 32 (1st Cir. 2003); United States v. Eirby, 262 F.3d

31, 38-39 (1st Cir. 2001). We affirm.

I.

How we view the facts depends on the claim asserted.

Gomez does not claim that, if the indictment encompassed all of the

conduct for which there was proof at trial, the evidence did not

1
The viability of this precedent may be called into question
by the Supreme Court's upcoming decision in Alleyne v. United
States, No. 11-9335 (argued Jan. 14, 2013).

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support his conviction. He makes the more limited claim that

evidence of a particular transaction was outside the scope of the

conspiracy charged in the indictment. That presents a question of

evidentiary sufficiency. See United States v. Perez-Ruiz, 353 F.3d

1, 7 (1st Cir. 2003). As to the issue of probable cause, we review

the court's factual findings supporting a conclusion as to probable

cause for clear error and its legal conclusion de novo. United

States v. Camacho, 661 F.3d 718, 723-24 (1st Cir. 2011).

A. The August-September 2008 Drug Transaction Involving
Gomez, a Confidential Informant, and Pena

This case involved both Gomez and his co-defendant Juan

Pena-Rosario, and interactions in Orlando, Florida and Lawrence,

Massachusetts. In the summer of 2008, Gomez, who was based in the

Boston area, was put in touch with a DEA confidential informant

("CI") located in Orlando, Florida because Gomez wanted to buy

large quantities of cocaine suitable for distribution.

On August 6, 2008, the CI recorded his telephone

conversation with Gomez. Gomez said that he knew people in Boston

who were "ready to deal with high quantities" of cocaine, that the

prices in Boston "are sky high right now," and that his people in

Boston "don't mind paying up the money." Gomez wanted to "talk it

over" with the CI to "[s]et the price. . . . a really good price,

to pay for everything, the trip and everything." In other

conversations, the CI told Gomez that if he wanted the CI not only

to sell him cocaine but also to transport it to Massachusetts,

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Gomez would have to pay extra for transportation at a rate of a

thousand dollars per kilogram of cocaine.

Less than a month later, Gomez drove from Massachusetts

to Orlando to meet with the CI. The CI met with Gomez on August

28, 2008, and following DEA instructions, wore a body microphone

during the meeting. Gomez and the CI discussed the logistics of

the CI transporting the cocaine to Massachusetts, and the CI showed

Gomez seven kilograms of cocaine (which an undercover DEA agent had

brought to the meeting place). Gomez cut into one of the cocaine

packages with a knife, rubbed the cocaine on his fingers, tasted

it, and declared that it was "good" and "really pure." Gomez then

confirmed that "you're bringing me seven, right?" and "[i]t's

seven, right?" -- meaning that the CI would bring Gomez seven

kilograms of cocaine. The CI agreed. Gomez gave the CI $7000 in

cash to pay for transporting the seven kilograms of cocaine to

Massachusetts.

Again following DEA instructions, the CI arranged another

meeting with Gomez on September 2, 2008 at a Chili's Restaurant in

Lowell, Massachusetts, where the CI was to give the seven kilograms

of cocaine to Gomez in exchange for money. The CI again wore a

body microphone during the meeting.

Agents conducting surveillance of the meeting saw a black

BMW X5 SUV pull into the parking lot of the restaurant; they

recognized this car as belonging to Juan Pena-Rosario, whom they

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had been investigating as a cocaine distributor since 2006. Pena

was driving the black SUV. During the meeting, Gomez told the CI

that "his guy was outside" the restaurant and at some point left

the restaurant to meet him. Agents watching the meeting from

outside saw Gomez leave the restaurant and talk to Pena for five

minutes. So the agents there knew of a connection between Gomez

and Pena.

After returning to the restaurant, Gomez urged the CI to

"front him" the seven kilograms of cocaine, meaning give him the

cocaine without payment on the understanding that Gomez would pay

later. The CI refused to accept this arrangement, and Gomez would

not agree to pay for the cocaine up front. The deal did not go

through.

B. The December 2008 Drug Transaction Involving Gomez and
Pena-Rosario, and the Ensuing Search of Gomez

Gomez's argument as to the alleged lack of probable cause

turns largely on the next transaction by Gomez, in Lawrence,

Massachusetts. On September 29, 2008, DEA agents initiated

wiretaps on two cell phones being used by Pena, and they continued

monitoring his phone calls through December of 2008.

On December 11, 2008, agents intercepted a series of

phone calls beginning at 5:55 p.m. between Pena and Individual No.

1. His identity at the time was unknown to agents, but they later

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learned it was Gomez.2 Individual No. 1 called Pena. Using

language frequently used by drug dealers to refer to drug

transactions, Pena and Individual No. 1 set up what agents

listening to the call believed to be a drug deal for Individual No.

1 to provide Pena with one kilogram of cocaine that night. They

talked about meeting later that evening and Pena told Individual

No. 1 to be ready.

At 6:44 p.m., Pena spoke over the phone with a second

unknown individual, Individual No. 2, different from the first

individual from whom Pena had arranged to obtain the cocaine. Pena

told Individual No. 2 to "get ready" because "the girl is ready."

"Girl" is common code among drug dealers for a kilogram of cocaine,

and agents interpreted these conversations to mean that Pena was

talking to a customer for the kilogram of cocaine Pena would obtain

that evening.

At 7:20 p.m., Individual No. 1 called Pena back and asked

him what time they were meeting. Pena told Individual No. 1 to be

on stand-by because he was still waiting to hear back from his

customer.

Individual No. 2 called Pena back at 8:32 p.m., telling

him to call the supplier and move ahead. Individual No. 2 asked

Pena to obtain the "girl" as soon as possible. Pena told this

2
Because the officers did not know before Gomez's arrest that
he was the speaker, that later-acquired knowledge is not
considered. See Sibron v. New York, 392 U.S. 40, 63 (1968).

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second individual that "they have it," said he would "get in touch

with them," and then said he was "going to go over there to see

them," making it likely that he planned to meet with more than one

individual.

At 8:51 p.m., Pena spoke with Individual No. 1 over the

telephone and asked, "Where are we going to eat?" Agents

interpreted this to mean, "Where are we going to consummate the

deal?" Individual No. 1 responded, "Do you know where the karate

school is, on 620 Essex?" and said "I'm here right now," "on the

third floor." Pena agreed to meet there.

At that point, the surveillance team tracking Pena split

into two groups, one of which followed Pena's car while the other

group went directly to 620 Essex Street in Lawrence, Massachusetts.

620 Essex Street is a four-story brick building where approximately

seven businesses are located, including a karate studio on the

third floor.

At about 9:10 p.m., agents saw a gray Dodge arrive at 620

Essex Street; a single male whom the agents did not recognize left

the Dodge and entered the building. At about 9:15 p.m. -- about

twenty minutes after Pena and Individual No. 1 arranged to meet at

620 Essex Street -- agents observed Pena arrive at 620 Essex Street

in his black BMW SUV, park it, and meet an individual whom the

agents did not recognize in the doorway of the building. Pena

entered the building with that individual and walked up the stairs.

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About five or six minutes later, agents saw Pena leave the

building, get in his car, and drive away. About ten to fifteen

minutes after Pena left, agents saw three individuals whom they did

not recognize leave 620 Essex Street, get into the Dodge, and drive

away. During the approximately thirty minutes that agents watched

620 Essex Street, no one entered or left the building other than

Pena and these three individuals.

One team of agents followed Pena and arrested him when he

reached his apartment complex. A search of Pena revealed a

kilogram of cocaine stuffed into the waistband of his pants, as

well as a cell phone whose number matched the number Pena used in

the wiretapped phone calls to set up the drug transaction earlier

that night.

Another team had followed the Dodge as it left 620 Essex

Street. This team stopped the Dodge when it was told cocaine had

been found on Pena. Officers pulled the Dodge over, and found

Gomez sitting in the rear passenger seat. Each of the three

passengers in the vehicle was searched, and the search of Gomez

recovered a cell phone, a wallet, and a set of keys. Law

enforcement agents later examined the phone and found that its

number matched the number of Individual No. 1, whom Pena had spoken

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to earlier that night. Gomez's wallet also contained a business

card; written on it was the phone number of the CI from Florida.3

II.

Gomez and Pena were indicted on one count of conspiracy

to possess with intent to distribute cocaine under 21 U.S.C. § 846:

From a date unknown to the Grand Jury, but from at least
in or about September, 2008, and continuing thereafter
until at least December 11, 2008, in the District of
Massachusetts and elsewhere, [the defendants] herein, did
knowingly and intentionally combine, conspire,
confederate, and agree with each other and other persons
unknown to the Grand Jury, to possess with intent to
distribute cocaine.

The indictment "alleged that the offense . . . involved at least

500 grams of a mixture and substance containing a detectable amount

of cocaine. . . . Accordingly, Title 21, United States Code,

Section 841(b)(1)(B)(ii) applies to this Count." Pena, but not

Gomez, was also charged with possession of cocaine with intent to

distribute, and aiding and abetting the same, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On December 8, 2009, Pena

pled guilty to both counts.

Gomez did not plead guilty, and he filed a motion to

suppress all evidence recovered after the December 11, 2008 search

of him, arguing that he was arrested and searched without a warrant

3
Although the government was aware of the prior association
of Pena and Gomez from the failed September 2 transaction, that
played no role in the probable cause determination.

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or probable cause. The district court denied the motion,

explaining that:

[T]he agents did have sufficient information to give them
probable cause to arrest Gomez. Based on the intercepted
coded phone conversations, they reasonably believed that
Pena-Rosario planned to meet a group of individuals at
620 Essex Street and purchase cocaine from them. Gomez
was an occupant of a car that arrived at 620 Essex Street
shortly before Pena-Rosario arrived and had left shortly
after Pena-Rosario had exited the building. This meeting
occurred at approximately 9:15 p.m., a time when one
would expect the four-story office building to be empty.
Although these facts did not definitively prove that
Gomez was involved in criminal activity, they provided
the agents sufficient grounds to believe that Gomez had
committed a criminal offense.

Gomez also moved to exclude evidence regarding the

meetings between Gomez and the CI in August and September of 2008,

on the ground that this evidence was "not relevant to this

indictment." The district court denied Gomez's motion without

prejudice to raising the issue again during trial; when raised at

trial, the court overruled Gomez's objection and allowed the

evidence to be introduced.

Near the end of the five-day jury trial, the government

submitted two different jury verdict forms to the court, one of

which asked the jury to make findings as to two different drug-

quantity thresholds -- either 500 grams or more, or five kilograms

or more, of a mixture or substance containing cocaine -- while the

other only asked the jury to determine whether the offense involved

500 grams or more of a mixture or substance containing cocaine.

Gomez opposed use of the first verdict form on the ground that

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"[t]he indictment charges 500 grams or more"; the court agreed and

used the second form. The jury then found Gomez guilty of

conspiracy to possess with intent to distribute cocaine in

violation of 21 U.S.C. § 846, and found that "the offense involved

at least 500 grams or more of a mixture and substance containing a

detectable amount of cocaine."

At Gomez's March 8, 2012 sentencing, the government

argued that eight kilograms of cocaine were attributable to Gomez,

triggering a mandatory minimum sentence of ten years pursuant to 21

U.S.C. § 841(b)(1)(A)(ii). Gomez argued that because the

indictment only charged him with, and the jury only found him

responsible for, an offense involving 500 grams or more of cocaine,

the appropriate mandatory minimum sentence was only five years

pursuant to § 841(b)(1)(B)(ii).

The court found "that the weight is eight kilograms" and

imposed "a minimum mandatory sentence of 120 months." Gomez timely

appealed the district court's judgment.

III.

On appeal, Gomez alleges two errors in the admission of

evidence against him at trial, and two errors at sentencing.

A. Alleged Errors at Trial

1. Evidence Regarding the Florida Transaction

Gomez argues that the August-September 2008 phone calls

and meetings between Gomez and the CI in Florida and Massachusetts

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were outside the scope of the charged conspiracy, and that

introducing evidence concerning these events constituted a

prejudicial variance. We review this claim de novo, see United

States v. Rivera-Donate, 682 F.3d 120, 128 n.7 (1st Cir. 2012),

considering "whether a variance occurred and, if so, whether that

variance prejudiced [the defendant's] substantial rights," id. at

128 (quoting Perez-Ruiz, 353 F.3d at 7). To determine whether the

government proved that the conduct in question was part of the

charged conspiracy, we "apply[] the typical framework for the

review of sufficiency challenges in criminal cases." Id. There

was no variance here.

The indictment charged that the conspiracy took place

"[f]rom a date unknown to the Grand Jury, but from at least in or

about September, 2008, and continuing thereafter until at least

December 11, 2008, in the District of Massachusetts and elsewhere."

This language is broad enough to include not only Gomez's meeting

with the CI in Lowell, Massachusetts in September of 2008, but the

related events occurring in Florida in August of 2008.

Moreover, there was evidence sufficient for a jury to

conclude that the August-September 2008 transaction and the

December 2008 transaction were part of the same conspiracy. There

was evidence that both transactions: (1) served a common goal,

i.e., supplying Pena with cocaine; (2) were mutually

interdependent, inasmuch as a jury could have found that the second

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transaction took place because the first transaction, which was

meant to supply Pena with cocaine, fell through; and (3) involved

overlapping participants, namely Gomez and Pena. See United States

v. Dellosantos, 649 F.3d 109, 117 (1st Cir. 2011). There was no

variance, and no error in the admission of evidence concerning the

planned drug deal between Gomez and the CI.

2. The Court's Probable Cause Determination as to
the Denial of the Motion to Suppress the Cell
Phone and Wallet Seized During the Search After
the Karate School Transaction

We review the court's factual findings for clear error

and its legal conclusion as to probable cause de novo. See

Camacho, 661 F.3d at 723-24. We determine whether an arrest was

supported by probable cause using a "totality of the circumstances"

standard, United States v. Reyes, 225 F.3d 71, 75 (1st Cir. 2000)

(quoting United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st

Cir. 1994)), under which "the government bears the burden of

establishing that, at the time of the arrest, the facts and

circumstances known to the arresting officers were sufficient to

warrant a reasonable person in believing that the individual had

committed or was committing a crime," id.

Gomez first argues that the district court clearly erred

in finding that "one would expect the four-story office building

[at 620 Essex Street] to be empty" at 9:15 p.m., when Pena and the

three individuals who later left together in the Dodge were in the

building. We need not resolve this claim. The parties stipulated

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below that while agents watched 620 Essex Street -- a period of

about a half-hour -- no one entered or left the building other than

Pena and the three individuals, and together with the court's other

unchallenged findings, this is enough to support the court's legal

conclusion as to probable cause.

Law enforcement agents had learned from Pena's wiretapped

conversations that he was going to meet with his cocaine suppliers

at 620 Essex Street on the evening of December 11, 2008. The

agents reasonably believed that Pena would purchase a kilogram of

cocaine at this meeting based on the code used by Pena and the

conversations with Individual No. 1, with whom he arranged the

meeting over the phone to get the cocaine, and Individual No. 2, to

whom Pena intended to sell the drugs. Agents watched Pena arrive

at 620 Essex Street about twenty minutes after the final phone call

between Pena and Individual No. 1 and, after staying in the

building for only a few minutes, leave. Soon thereafter, and

before arresting Gomez, the agents discovered one kilogram of

cocaine on Pena. Based on this information, the agents had

probable cause to believe that Pena obtained a kilogram of cocaine

while at 620 Essex Street.

Agents also learned from the wiretapped conversations

that Individual No. 1, with whom Pena arranged the meeting, was

already at the "karate school" on the third floor of the building

at 620 Essex Street as of 8:51 p.m. Agents set up surveillance at

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620 Essex Street immediately thereafter, and saw (1) an unknown man

arrive at the building in a gray Dodge Avenger; (2) Pena arrive at

the building, meet with an unknown man, walk up the stairs, and

then leave the building after a few minutes; and (3) three unknown

men leave soon after Pena in the gray Dodge. Whether or not the

agents thus had probable cause to believe that the three men that

left in the Dodge included the individuals from whom Pena had

arranged to buy a kilogram of cocaine, they did have probable cause

when, in addition, they arrested Pena and found him with the

cocaine.4

Gomez's main argument on appeal is that even if there was

probable cause to arrest and search Pena, this did not translate

into probable cause to arrest Gomez. Gomez says that as far as

agents then knew, he was just in the wrong place at the wrong time.

After all, agents did not then know that Gomez was the person with

whom Pena had arranged the meeting. Gomez quotes Ybarra v.

Illinois, 444 U.S. 85, 91 (1979), for the proposition that "a

person's mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable

4
No one else entered or left 620 Essex Street during the
half-hour that agents watched the building; two of the men who left
in the Dodge were present in the building when agents began
surveillance, just as Individual No. 1 said he would be; the three
men left in a group, consonant with Pena's statement that he would
be meeting more than one person; and the Dodge arrived at the
building immediately before Pena's arrival, and left with the three
men soon after his departure.

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cause to search that person." But agents did not arrest Gomez

based merely on his proximity to other persons suspected of

criminal activity; rather, he was arrested based on the strong

likelihood that he himself had participated in this activity.

Agents reasonably believed, based on the wiretapped

conversations and the search of Pena, that Pena had met with a

group of individuals at 620 Essex Street and bought a kilogram of

cocaine from them. They also reasonably believed that the three

individuals who left in the Dodge were this group, and Gomez was

among these three individuals. Furthermore, "criminals rarely

welcome innocent persons as witnesses to serious crimes and rarely

seek to perpetrate felonies before larger-than-necessary

audiences." United States v. Martinez-Molina, 64 F.3d 719, 729

(1st Cir. 1995). The private nature of drug deals involving the

purchase of large quantities of cocaine appropriate for

distribution only bolstered the already strong likelihood that all

three individuals leaving in the Dodge had participated in the drug

transaction that had occurred.

The facts of this case are similar to United States v.

Sepulveda, 102 F.3d 1313 (1st Cir. 1996), where we upheld a finding

of probable cause to arrest and search the defendant where he had

been present as his co-defendant sold drugs. Id. at 1315-16. The

facts here actually support probable cause even more strongly than

in Sepulveda, as agents here had specific information that caused

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them to reasonably believe that all three individuals leaving in

the Dodge had been involved in the selling of cocaine to Pena

together. In contrast, the cases that Gomez cites in support of

his argument are distinguishable. We list the main cases on which

he relies. See, e.g., Sibron v. New York, 392 U.S. 40, 62-63

(1968) (no probable cause where defendant observed talking with

known narcotics addicts, but agents had no specific reason to

believe criminal activity had occurred or that defendant had

participated in that activity); United States v. Valentine, 539

F.3d 88, 93-95 (2nd Cir. 2008) (no probable cause where defendant

present and associating with other men at apartment building where

controlled buy was to take place, but agents had no reason to

believe there were any participants in controlled buy other than

intended purchaser); United States v. Collins, 427 F.3d 688, 690-93

(9th Cir. 2005) (no probable cause where defendant arrived in

parking lot at time agents expected co-defendant to receive stolen

checks, but another individual separately arrived at same time, all

individuals remained visible at all times, and defendant did not

interact with co-defendant); United States v. Ingrao, 897 F.2d 860,

862-65 (7th Cir. 1990) (no probable cause where defendant, while

carrying a black bag, walked between two buildings while a

suspected drug transaction occurred out of one of the houses, which

belonged to a known drug trafficker, but agents had no reason to

believe defendant had been in trafficker's house); United States v.

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Everroad, 704 F.2d 403, 405-07 (8th Cir. 1983) (no probable cause

where defendant seen accompanying co-defendant, who had arranged

drug deal with undercover officer, but defendant not present during

any drug deal or conversation about drugs); United States v.

Ceballos, 654 F.2d 177, 179-180, 185-86 (2d Cir. 1981) (no probable

cause where defendant seen entering residence of suspected drug

dealer and leaving with brown paper bag, but agents had no specific

reason to believe criminal activity had occurred while defendant in

residence); United States v. Chadwick, 532 F.2d 773, 784-85 (1st

Cir. 1976) (no probable cause where defendant met co-defendants at

train station and loaded footlocker suspected of containing

marijuana into car, but agents had no reason to believe defendant

knew contents of footlocker).

The claims of trial error fail.

B. Alleged Errors at Sentencing

1. The Court's Imposition of a Mandatory Minimum
Sentence Based on Its Quantity Findings

Gomez argues that his mandatory minimum sentence of ten

years was imposed in violation of Apprendi v. New Jersey, 530 U.S.

466, since the mandatory minimum was based on the court's findings

as to drug quantity.

Gomez acknowledges that we have rejected this argument

before, in United States v. Goodine, 326 F.3d 26, where we held

that "drug quantity for purposes of § 841 is a sentencing factor

that may be determined by a preponderance of the evidence," so that

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"a judge's determination of drug quantity can influence the

mandatory minimum sentence imposed." Id. at 32. Gomez notes,

however, that our holding in Goodine relied on Harris v. United

States, 536 U.S. 545 (2002), and that the Supreme Court recently

heard oral argument on whether Harris should be overruled. See

Alleyne v. United States, No. 11-9335 (argued Jan. 14, 2013).

Gomez urges that we should withhold decision in this appeal until

Alleyne is decided. We decline to do so. Under controlling First

Circuit and Supreme Court precedent, the district court did not err

in sentencing Gomez to a mandatory minimum sentence based on the

court's findings as to drug quantity.

In any event, any error was harmless, since the "evidence

overwhelmingly establishe[d] the minimum drug quantity needed to

justify" Gomez's sentence, here five kilograms of cocaine, where

Gomez repeatedly tried to buy seven kilograms for him to resell.

United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir. 2004).

2. Notice as to the Mandatory Minimum Sentence

Finally, Gomez argues that because the indictment against

him specified only that 21 U.S.C. § 841(b)(1)(B)(ii) applied to the

count against him, the court erred by sentencing him pursuant to

§ 841(b)(1)(A)(ii), which imposes a ten-year mandatory minimum for

offenses involving five kilograms or more of cocaine.

We have examined this exact issue before, in United

States v. Eirby, 262 F.3d 31, and there explained that since "[t]he

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specification of a penalty provision for the underlying offense

[is] . . . not essential to the validity of the conspiracy count,"

a "court's use of section 841(b)(1)(A) rather than section

841(b)(1)(B) . . . [does] not usurp the prerogative of the grand

jury." Id. at 38. We also explained in Eirby that "the switch to

section 841(b)(1)(A) [does] not constitute reversible error unless

it deprived the appellant of notice or otherwise misled him to his

detriment." Id. At least as of the time the district court denied

Gomez's motion to exclude evidence pertaining to the August-

September 2008 transaction, Gomez was put on ample notice that he

would be held responsible for the drug quantities involved in both

that transaction and the December 2008 transaction if convicted.

The court did not err in sentencing Gomez pursuant to a statutory

provision not specified in the indictment.

IV.

Gomez's conviction and sentence are affirmed.

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