United States Court of Appeals
For the First Circuit
No. 00-2249
UNITED STATES OF AMERICA,
Appellee,
v.
ELVIN GOMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Mary A. Davis and Tisdale & Davis, P.A. on brief for
appellant.
Donald K. Stern, United States Attorney, and Todd E.
Newhouse, Assistant United States Attorney, on brief for
appellee.
July 6, 2001
SELYA, Circuit Judge. Challenging the sufficiency of
the evidence and alleging instructional error, defendant-
appellant Elvin Gomez asks us to reverse (or, at least, set
aside) his conviction for conspiracy to distribute crack cocaine
(cocaine base). Should we refuse this entreaty, he seeks
vacation of his sentence. Discerning no error, we affirm both
his conviction and sentence.
I.
Background
We recount the facts in the light most compatible with
the government's theory of the case, consistent with record
support. See United States v. Alicea, 205 F.3d 480, 482-83 (1st
Cir.), cert. denied, 121 S. Ct. 256 (2000).
Agent Alex Baginski, a member of a Drug Enforcement
Administration task force, working undercover, spearheaded a
protracted investigation of a drug-trafficking operation in
Holyoke, Massachusetts. The investigation neared its climax on
May 3, 1999, when Baginski placed a telephone call to Jorge
Arocho for the ostensible purpose of buying five ounces of crack
cocaine.1 Baginski and Arocho agreed to the price, quantity, and
other terms, and then agreed to consummate the transaction at
1
All dates mentioned in this opinion are in 1999, unless
otherwise indicated.
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the Brooks shopping plaza in Holyoke (a site that they had used
on April 22 when concluding an earlier controlled drug buy).
The site was within 1,000 feet of a public school.
After some delay (not consequential here), the meeting
was rescheduled for May 5. That afternoon, officers watched as
Arocho went to see the appellant, left, and returned to pick him
up. The men proceeded together to the Brooks shopping plaza.
There, Baginski met Arocho and the appellant in the parking lot
and bought 140.6 grams of crack for $4,250. A surveillance team
witnessed the transaction and recorded it on both videotape and
audiotape.
On August 26, a federal grand jury returned a nine-
count indictment against three defendants: the appellant,
Arocho, and one Luis Feliciano. All the charges stemmed from
Baginski's exploits in the April-May time frame. In due season,
Arocho pled guilty and the government dropped the charges
against Feliciano. Thus, the appellant stood trial alone. In
the course of the trial, he raised a misidentification defense,
resting primarily on the fact that Baginski originally had named
Feliciano as Arocho's companion during the April 22 transaction.2
2
Baginski admitted that, at first, he identified Feliciano
as the person who accompanied Arocho to the Brooks shopping
plaza on April 22. Baginski explained that he had made this
identification only after being shown a less-than-recent
photograph of Feliciano by a fellow agent; and that, following
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This, he argued, cast doubt on his involvement in the later (May
5) transaction and in the charged conspiracy.
The jury disagreed. It found the appellant guilty on
three counts, viz.: (1) distributing crack cocaine on May 5 (or
aiding and abetting the same), see 21 U.S.C. § 841(a)(1) & 18
U.S.C. § 2; (2) distributing crack cocaine on that date within
1,000 feet of a public school (or aiding and abetting the same),
see 21 U.S.C. §§ 841(a)(1), 860 & 18 U.S.C. § 2; and (3)
conspiring to distribute crack cocaine during the approximate
period from April 22 to May 5, see 21 U.S.C. § 846 & 18 U.S.C.
§ 2. The court thereafter sentenced the appellant to a 133-
month incarcerative term. This appeal followed.
II.
Discussion
Before us, the appellant, represented on appeal by able
counsel, makes three principal points. First, he challenges the
district court's denial of his motion for judgment of acquittal
on the conspiracy count. In that regard he contends, in effect,
that Baginski's April 22 misidentification, and the lack of any
other competent evidence that the appellant participated in the
April 22 transaction, undermined the evidentiary predicate for
the May 5 incident, he realized that it had been the appellant,
not Feliciano, who had accompanied Arocho on April 22.
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the conspiracy charge. Second, the appellant alleges that the
district court erred in instructing the jury. Finally, he
invokes the Supreme Court's recent decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and asseverates that the lower
court violated Apprendi principles in fixing the length of his
sentence. We address these claims sequentially.
A.
The Sufficiency Challenge.
The appellant, impliedly conceding the sufficiency of
the evidence on the two May 5 drug-distribution counts, hoists
the red flag of evidentiary insufficiency as to the conspiracy
count. He raised this point below by a motion for judgment of
acquittal, Fed. R. Crim. P. 29, but to no avail. We review the
district court's denial of a motion for judgment of acquittal de
novo. United States v. Staula, 80 F.3d 596, 604 (1st Cir.
1996). When, as now, a criminal defendant undertakes a
sufficiency challenge, all the evidence, direct and
circumstantial, must be perused from the government's
perspective, and the reviewing court — like the presider — must
"decide whether that evidence, including all plausible
inferences extractable therefrom, enables a rational factfinder
to conclude beyond a reasonable doubt that the defendant
committed the charged crime." United States v. Noah, 130 F.3d
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490, 494 (1st Cir. 1997). In that process, the court must
"resolve all credibility disputes in the verdict's favor."
United States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). In
the end, the court "need not believe that no verdict other than
a guilty verdict could sensibly be reached, but must only
satisfy itself that the guilty verdict finds support in 'a
plausible rendition of the record.'" United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United
States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).
To prove conspiracy in a criminal case, the government
must prove beyond a reasonable doubt that an agreement existed
to commit the underlying substantive offense (here, the
distribution of drugs), that the defendant knew of the
agreement, and that he opted to join in it, intending to commit
the substantive offense. See United States v. Barnes, 244 F.3d
172, 174 (1st Cir. 2001); United States v. Sepulveda, 15 F.3d
1161, 1173 (1st Cir. 1993). The conspiratorial agreement need
not be explicit and the proof thereof need not be direct.
Sepulveda, 15 F.3d at 1173 (explaining that "the agreement may
be express or tacit and may be proved by direct or
circumstantial evidence"). In this case, the agreement to
distribute drugs is patent; the only real question is whether
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the government proved that the appellant was part and parcel of
that agreement.
The appellant would have us answer this question in the
negative. He contends that the evidence tying him to the April
22 transaction was unreliable, and in all events, the judge told
the jury that Baginski's testimony about the April 22
transmission was to be considered only on the issue of
identification. Without such a tie, the appellant says, the
jury had nothing to go on beyond the evidence that he arguably
participated in a single sale (occurring on May 5) — and that
was simply not enough to ground a conspiracy conviction.
The record tells a different tale. There was a
significant amount of evidence introduced at trial upon which
the jury reasonably could have relied in convicting the
appellant on the conspiracy count. In particular, the jury
supportably could have found that the appellant accompanied
Arocho on May 5. This, together with the evidence of
conversations that took place prior to the May 5 transaction and
the appellant's actions both on the day of the sale and at the
scene (including his demonstrable eagerness to sell drugs to
Baginski in future transactions), formed an adequate foundation
on which to build the government's case. Against this
evidentiary backdrop, proof of the appellant's direct complicity
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in the April 22 transaction was not a prerequisite to proof of
his membership in the charged conspiracy.3
To complete the picture, we add two observations.
First, we reject out of hand the appellant's suggestion that
multiple transactions must be shown to forge a conviction for a
drug-trafficking conspiracy. To the contrary, the government is
not required to plead or prove even a single overt act to obtain
a conspiracy conviction under 21 U.S.C. § 846. See United
States v. Shabani, 513 U.S. 10, 13 (1994); United States v.
Portela, 167 F.3d 687, 702 (1st Cir. 1999). It follows
inexorably that the government need not prove the commission of
multiple transactions in order to secure a conviction under that
statute.
We likewise reject the appellant's claim that the
jury's affirmative finding, recorded on the verdict slip (which
mimicked the indictment and indicated that the conspiracy had
begun "on or about April 22"), required an acquittal unless the
government proved that the appellant participated in the April
3 It comes with poor grace for the appellant to suggest some
sort of impermissible spillover effect resulting from the
introduction of the evidence anent the April 22 transaction.
After all, it was the appellant himself who elected to bring out
this information. The record indicates that he did so in order
to show the jury that Baginski had misidentified a photograph of
Feliciano, thereby casting doubt upon Baginski's assertion that
it was the appellant who accompanied Arocho on May 5.
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22 transaction. "On or about" dates, when used in an
indictment, are mere approximations. In the ordinary case,
neither the prosecution nor the trier of facts is held to
temporal precision in regard to such dates. See, e.g., United
States v. Escobar-de Jesús, 187 F.3d 148, 168 (1st Cir. 1999)
(holding that evidence about an act occurring in late March
supported proof of a conspiracy alleged to have begun "on or
about" April), cert. denied, 528 U.S. 1176 (2000); Portela, 167
F.3d at 698 n.7 (noting that evidence of an act occurring in
early April could suffice to prove a crime alleged to have
occurred "on or about" March). Even assuming, for argument's
sake, that the April 22 transaction was not part of the charged
conspiracy,4 the record here is replete with evidence that the
conspiracy was operative in early May. In our view, this
suffices to ground a charge that the conspiracy began "on or
about April 22."
B.
Alleged Instructional Errors.
4The fact that the appellant did not participate in the
April 22 transaction does not mean that the charged conspiracy
was not then in existence, or that the appellant cannot be held
criminally responsible for its activities. See United States v.
Baines, 812 F.2d 41, 43 (1st Cir. 1987) ("[A] conspiracy is like
a train. When a party knowingly steps aboard, he is part of the
crew, and assumes conspirator's responsibility for the existing
freight — or conduct — regardless of whether he is aware of just
what it is composed.").
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Although the district court admitted evidence of the
April 22 transaction at trial, see supra note 3, it gave a
limiting instruction concerning the jury's use of that evidence.
The appellant alleges that this instruction permitted the jury
to find him guilty on the conspiracy count even if the
government proved no more than that he was guilty of
participating in the May 5 drug sale.
The first obstacle in the appellant's path is that he
failed to object at trial to the limiting instruction. When a
defendant neglects to interpose a contemporaneous objection to
the trial court's jury instructions in conformity with Federal
Rule of Criminal Procedure 30, subsequent claims of
instructional error are, for the most part, forfeit.5 See United
States v. Paniagua-Ramos, 251 F.3d 242, ___ (1st Cir. 2001) [No.
95-1568, slip op. at 5-6]. We say "for the most part" because
a narrow exception persists for plain error. Id. at ___ [slip
op. at 6]; Alicea, 205 F.3d at 484. In United States v. Duarte,
5The rule provides in pertinent part:
No party may assign as error any portion of
the charge or omission therefrom unless that
party objects thereto before the jury
retires to consider its verdict, stating
distinctly the matter to which that party
objects and the ground of the objection.
Fed. R. Crim. P. 30.
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246 F.3d 56 (1st Cir. 2001), we catalogued what is needed to
qualify for this exception:
Review for plain error entails four
showings: (1) that an error occurred (2)
which was clear or obvious and which not
only (3) affected the defendant's
substantial rights, but also (4) seriously
impaired the fairness, integrity, or public
reputation of judicial proceedings. Johnson
v. United States, 520 U.S. 461, 466-67
(1997); United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Brown, 235
F.3d 2, 4 (1st Cir. 2000).
Id. at 60. We apply that standard here, mindful that the plain-
error exception is cold comfort to most defendants pursuing
claims of instructional error. See United States v. Weston, 960
F.2d 212, 216 (1st Cir. 1992) ("While reversal of a conviction
predicated on unpreserved instructional error is theoretically
possible, [it is] the rare case in which an improper instruction
will justify reversal of a criminal conviction when no objection
has been made in the trial court.") (citation and internal
quotation marks omitted).
The appellant asserts that the district court's
limiting instruction improperly permitted the jury to find him
guilty on the conspiracy count without proof of anything more
than that he helped to distribute drugs on May 5. We think that
this requires far too grudging a reading of the district court's
words.
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In its limiting instruction, the court explained that
the appellant had been "charged with participation in a drug
offense on one occasion only and that is May 5, 1999." The
court then acknowledged that "one witness had testified that
[the appellant] was involved in the April 22 transaction," but
cautioned that such testimony had been admitted "for one very
limited purpose, and that is the issue of identification,
whether the identification of Mr. Gomez is reliable." Near the
end of this instruction, the court remarked that "in deciding
whether Mr. Gomez was involved in the May 5 incident, which is
the only crime that he's charged with, you should concentrate on
the evidence related to that particular transaction." It is the
middle part of this last sentence that draws the appellant's
fire.
The appellant contends that this "only crime" reference
effectively merged the distribution and conspiracy counts, and
suggested to the jury that if he was guilty of the May 5
offense, then a fortiori, he was guilty of the charged
conspiracy. The principal difficulty with this argument (beyond
the fact that the appellant failed to object to the language
that he now vilifies, and thus deprived the court of any
opportunity to clarify a perceived ambiguity) is that a single
sentence from a court's charge may not be evaluated in
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isolation. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)
(noting the "well established proposition that a single
instruction to a jury must not be judged in artificial
isolation, but must be viewed in the context of the overall
charge"); accord United States v. Alvarado, 982 F.2d 659, 663-64
(1st Cir. 1992); United States v. Cintolo, 818 F.2d 980, 1003
(1st Cir. 1987). Here, we must pay particular heed to the fact
that the court was talking, at the time, about the jury's
inability to use evidence of the April 22 transaction as
substantive evidence of the appellant's participation in the May
5 transaction. Seen in that setting, the court's comment —
distinguishing May 5 from April 22 — seems appropriate.
If more were needed — and we doubt that it is — looking
to the charge as a whole reveals the shallowness of the
appellant's assignment of error. In his concluding charge to
the jury, Judge Ponsor stated:
You must consider these counts separately
and return a verdict of guilty or not guilty
with respect to each count. Whether you
find the defendant guilty or not guilty as
to one count should not necessarily affect
your verdict as to the other counts charged.
Mr. Gomez has three counts pending against
him. Each count charges the defendant with
a separate crime. . . . You must consider
each count separately and return a separate
verdict of guilty or not guilty for each.
As I have noted, whether you find the
defendant guilty or not guilty as to one
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offense should not necessarily affect your
verdict as to the other offense charged.
Further emphasizing that the three counts were separate and
distinct, the judge twice instructed the jury that "if you do
not find that the government has met its burden of proof on one
or more of these three charges, you must find the defendant not
guilty on that charge or charges."
That ends the matter. While the single sentence on
which the appellant concentrates might, if standing by itself,
leave something to be desired, the specific context is
inhospitable to such a criticism, and the charge as a whole
falls well within the bounds of propriety. There was no plain
error.
The appellant has a second string to his "instructional
error" bow. He assails a sentence in the instructions in which
the court stated that "the government is not required to prove
every detail of the charges, so long as the evidence is
sufficient to satisfy the requirements set out in these
instructions." This statement, the appellant maintains,
improperly allowed the jury to convict without finding him
guilty beyond a reasonable doubt of each element of the charged
conspiracy. Once again, the appellant — who made no
contemporaneous objection to this statement below — focuses the
lens of inquiry too narrowly.
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In his introductory remarks to the jury, Judge Ponsor
specifically noted that the "charges are not evidence of any
kind against the defendant, nor do they suggest any
responsibility on the defendant's part for the offenses
specified against him." He then gave detailed instructions
regarding the government's burden of proof and the elements of
each offense. In his concluding charge, he told the jury that
it should "not single out one instruction alone as stating the
law, but consider the instructions as a whole." He then
discussed each offense and its elements. His recital of the
conspiracy charge was meticulous. It included the following
passage:
In order for the government to sustain its
burden of proof with respect to the
conspiracy charge against the defendant, the
government must prove the following two
elements beyond a reasonable doubt: First,
that the specific conspiracy, here to
possess with the intent to distribute
cocaine and to distribute cocaine base,
actually existed; second, that the defendant
willfully became a member of that
conspiracy.
After adding a detailed explication of each of these elements,
the court concluded:
Once again, I repeat, in order to establish
that Mr. Gomez is guilty of this charge of
conspiracy, you must be convinced beyond a
reasonable doubt that, first, an agreement
existed between two or more persons to
possess with intent to distribute . . .
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cocaine and cocaine base; and second, the
defendant willfully joined that conspiracy.
We have no doubt but that these instructions, read
collectively, adequately informed the jury of its obligation to
find each element of the conspiracy — and of the other two
charged crimes, for that matter — beyond a reasonable doubt
before returning a guilty verdict.6 The painstaking care
exhibited by the district court in crafting these instructions
refutes the appellant's claim that one sentence in a charge that
covered thirty pages of transcript constituted error, plain or
otherwise.7
C.
Alleged Sentencing Error.
6It is not clear whether the appellant makes this "elements
of the offense" argument only as to the conspiracy count, or as
to all three of the charged crimes. The distinction is
immaterial, however, as the district court's instructions were
adequate across the board.
7 The appellant mentions in his brief that the district court
failed to follow the pattern jury instructions promulgated for
use in this circuit. See Pattern Criminal Jury Instructions for
the District Courts of the First Circuit (Dec. 17, 1997). By
their terms, those instructions are precatory, not mandatory.
See id. preface. A district court possesses wide discretion to
instruct in language that it deems most likely to ensure
effective communication with jurors, see, e.g., United States v.
Houlihan, 92 F.3d 1271, 1299 n.31 (1st Cir. 1999), and the
compilation of pattern instructions does not in any way curtail
this wide discretion.
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Finally, we turn to the appellant's claim of sentencing
error. Under this rubric, he argues that his 133-month sentence
transgresses the spirit, if not the letter, of the Supreme
Court's ruling in Apprendi. He is wrong.
In Apprendi, the Court held that "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." 530
U.S. at 490. Here, however, the sentence actually imposed does
not exceed the prescribed statutory maximum — which we have
called the "default statutory maximum." United States v.
Robinson, 241 F.3d 115, 118 (1st Cir. 2000). That is because
the appellant's 133-month sentence falls below the statutory
maximum of twenty years' imprisonment for unspecified quantities
of cocaine base, see 21 U.S.C. § 841(b)(1)(C), and below the
statutory maximum of forty years' imprisonment for unspecified
quantities of cocaine base sold within 1,000 feet of a public
school, see 21 U.S.C. § 860. Thus, no Apprendi error inheres.
To be sure, the appellant complains that the lower
court increased his guideline sentencing range by reference to
its own findings on drug quantity, and insists that Apprendi
should be applied to nullify any such increase. This argument
is by now old hat. We heretofore have concluded, and today
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reaffirm, that Apprendi does not apply to findings by the
sentencing judge, under a preponderance-of-the-evidence
standard, that elevate a defendant's guideline sentencing range
(and, thus, his ultimate sentence), so long as the imposed
sentence does not outstrip the default statutory maximum. See
United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001)
("Apprendi simply does not apply to guideline findings.").
Consequently, the appellant's 133-month sentence is free from
Apprendi error.
III.
Conclusion
We need go no further. For aught that appears, the
appellant was fairly tried, lawfully convicted by a properly
instructed jury, and justly sentenced.
Affirmed.
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United States v. Gomez
Court: Court of Appeals for the First Circuit
Date filed: 2001-07-06
Citations: 255 F.3d 31
Copy CitationsCombined Opinion