U.S. v. Gomez

• Decision Date: 26 July 1996
• Docket Number: No. 94-10520,94-10520
• Citation: 92 F.3d 770
• Parties: 96 Cal. Daily Op. Serv. 5513, 96 Daily Journal D.A.R. 9019 UNITED STATES of America, Plaintiff-Appellee, v. Steven Paul GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 770

92 F.3d 770

96 Cal. Daily Op. Serv. 5513, 96 Daily Journal

D.A.R. 9019

UNITED STATES of America, Plaintiff-Appellee, v. Steven Paul GOMEZ, Defendant-Appellant.

No. 94-10520.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1995.

Decided April 11, 1996.

As Amended on Denial of Rehearing

July 26, 1996.

Robert M. Holley, Sacramento, California, for defendant-appellant Steven Paul Gomez.

Nancy L. Simpson, Assistant United States Attorney, Sacramento, California, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding.

ORDER

The opinion in this case is amended by adding the following two concurrences. Except as noted above, the petition for rehearing is DENIED.

Before: HALL, KOZINSKI and HAWKINS, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

This case gives fresh meaning to the phrase, "I'm from the government and I'm here to help you."

I

The facts alleged by the defendant, Steven Paul Gomez, are troubling. ¹ In late February or early March of 1992, Gomez was being held in the Sacramento County Jail on state-law charges when he learned from his attorney that he had been acquitted. After Gomez told his fellow inmates the good news, one of them asked whether this meant he would be released. Gomez said yes, and the other inmate, a man by the name of Imran Mir, offered him a job. Mir was charged with participating in an international drug conspiracy and wanted Gomez to kill six witnesses who were going to testify against him. ² Mir offered Gomez $10,000 or half a kilogram of heroin for each witness he managed to knock off.

Gomez promptly reported Mir's offer to the jail guards. He did so out of a sense of moral obligation, expecting no reward. The customs agent who had been working on Mir's drug case was notified and eventually got in touch with Gomez. After the agent promised to keep Gomez's identity secret and protect him if his identity were revealed, Gomez agreed to help the government gather evidence against Mir.

Gomez then pretended to accept Mir's offer. The two communicated by written note, by telephone and through a female intermediary (actually an undercover customs agent) who would visit Mir in jail by posing as a friend. Mir was nothing if not thorough: He gave Gomez the names, addresses and physical descriptions of the witnesses; in most cases, he provided directions to their homes and described their cars; he promised to obtain weapons for Gomez and had $1,000 sent to him as a down payment. Gomez worked with government agents for about three months, helping them gather substantial evidence incriminating Mir. A parole report noted, "without [Gomez] U.S. Customs would have lost the case."

Once the government thought it had enough evidence against Mir, it gave Gomez $2,500 and sent him on his way. The next day, the United States filed an indictment charging Mir with five counts of solicitation to commit murder. Although the government had used code names to keep Gomez's identity secret throughout the investigation, the indictment disclosed Gomez's full and true name. ³ The government didn't tell Gomez that his name would be revealed, but he soon found out.

Shortly after Gomez was released, ⁴ he began receiving death threats. On October 3, 1992, he was accosted by a man with a gun who asked him why he had cooperated with law enforcement. Gomez escaped by running into a friend's house, but the man told him this was the last time he would let Gomez go because "there's money to be made." Gomez later learned from his sister there was a contract out on his life. He went back to the federal agents and begged them to take him into protective custody; he went to the Sacramento County Sheriff; he went to his parole agent; he went to the Catholic and Episcopal churches. No one was willing or able to help him. Gomez even took his story to a newspaper, which wrote about his plight. See Curt Guyette, Running Scared, Sacramento News & Rev., January 7, 1993, at 14-16. All to no avail.

Gomez then started running for his life. He would stay at a friend's house for a while, getting rides from people he trusted. At other times, he lived on the streets, sleeping in parks during the day, walking around at night and riding buses for hours. Gomez eventually resorted to falsely telling a parole agent he was using illegal drugs so he could see his parole officer. As a result of this lie, Gomez was sent back to jail for violating parole. About a week and a half after arriving there on December 24, he received a written death threat addressed to "Smiley," the name by which Mir knew him. Gomez was released on January 23, 1993, and on February 2, one of his friends received a telephone death threat meant for Gomez. In fear for his life and not knowing what else to do, Gomez made a fateful decision: He took possession of a twelve-gauge shotgun that had been stored at a friend's house.

Right about that time, the federal government suddenly decided it needed Gomez's further help after all. On February 4, 1993, two customs agents went to serve Gomez with a subpoena. When they finally found him at a friend's house, Gomez was carrying the shotgun. The agents drew their side arms and ordered Gomez to put up his hands. He ran into the house, threw away the shotgun and fled. The agents searched the house and found the shotgun. Gomez was arrested the next day; he had had the shotgun for two days.

II

Gomez was indicted on two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1): one for the shotgun, the other for the shells in it. Gomez made a motion in limine seeking permission to introduce evidence tending to prove that his possession of the shotgun was justified. The district court denied the motion and Gomez pleaded guilty to one count, retaining the right to appeal the district court's ruling.

Gomez argues he should have been allowed to present the death threat evidence in order to make out either a duress or necessity defense. In this and other circuits, however, cases such as Gomez's have almost always been analyzed in terms of justification. ⁵ See United States v. Sahakian, 965 F.2d 740, 741 (9th Cir.1992); United States v. Paolello, 951 F.2d 537, 540-41 (3d Cir.1991); United States v. Singleton, 902 F.2d 471, 472-73 (6th Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990); United States v. Stover, 822 F.2d 48, 49-50 (8th Cir.1987). We therefore review Gomez's evidence to determine whether it is sufficient to make out a case of justification. ⁶

The government points to United States v. Nolan, 700 F.2d 479, 484 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983), and Paolello, 951 F.2d at 541-42, implying that the justification defense is not available in felon-in-possession cases. See Appellee's Br. at 16 ("As explained by this Court in United States v. Nolan, ... federal firearms laws impose something approaching absolute liability."); see also id. at 20-21. Nolan and Paolello, however, did not go quite so far. See Nolan, 700 F.2d at 484 ("Rather than rule that self defense is never available, courts have generally ruled that the defendant has not pleaded facts sufficient to raise the defense."); Paolello, 951 F.2d at 541 ("Nonetheless, the courts of appeals, including this court, have recognized that the justification defense is available under this statute."); see also United States v. Panter, 688 F.2d 268, 271 (5th Cir.1982) ("We do not believe that Congress intended to make ex-felons helpless targets for assassins."). In fact, in Paolello, the Third Circuit reversed the conviction because the district court had refused to instruct the jury on the justification defense. 951 F.2d at 542-44. ⁷

Thus, if the evidence, when viewed in the light most favorable to Gomez, was adequate to make out a justification defense, he was entitled to present it and have the jury instructed accordingly. See United States v. Lemon, 824 F.2d 763, 764-65 (9th Cir.1987); Sahakian, 965 F.2d at 741 (district court did not err in excluding defendant's offer of proof where evidence was inadequate to make out justification defense). The defendant must establish four elements in order to make out a justification defense:

(1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Lemon, 824 F.2d at 765. We consider whether Gomez made this showing.

A. Was There An Unlawful and Present Threat of Death or Serious Bodily Injury?

There's no dispute that the threat against Gomez was unlawful or that, if carried out, it would have caused him death or serious bodily injury. The district judge, however, held that the danger was not immediate enough because no one was holding a gun to the defendant's head, most of the threats were received over the phone or through other people, and all were two or more days old. ⁸

We have reached the opposite conclusion on similar facts. In United States v. Contento-Pachon, 723 F.2d 691 (9th Cir.1984), defendant testified that a drug dealer named Jorge threatened to kill him and his family if he did not smuggle cocaine into the United States. Contento-Pachon swallowed balloons filled with cocaine, took a flight to the United States and was arrested here. While Contento-Pachon was told that someone would be watching him at all times, he pointed to nothing substantiating his claim. He also presented no evidence that Jorge was holding his wife and child hostage. Finally, the last threat was remote in time and place from Contento-Pachon's arrest: He was threatened in Bogota, flew out of...