U.S. v. Gomez-Vigil

• Decision Date: 03 April 1991
• Docket Number: No. 90-1534,GOMEZ-VIGI,D,90-1534
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgarefendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 254

929 F.2d 254

UNITED STATES of America, Plaintiff-Appellee, v. Edgar GOMEZ-VIGIL, Defendant-Appellant.

No. 90-1534.

United States Court of Appeals,

Sixth Circuit.

Argued March 19, 1991.

Decided April 3, 1991.

Mark C. Jones, Asst. U.S. Atty., (argued), Office of the U.S. Atty., Flint, Mich., for plaintiff-appellee.

Edgar Gomez-Vigil, La Tuna, Tex., pro se.

Martin A. Geer, (argued), Kessler & Geer, Ann Arbor, Mich., for defendant-appellant.

Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Edgar Gomez-Vigil appeals his perjury conviction and twenty-four month sentence. For the following reasons, we affirm Gomez-Vigil's conviction and sentence.

I.

On November 7, 1986, defendant-appellant Edgar Gomez-Vigil ("appellant" or "Gomez-Vigil") was found guilty of conspiracy to distribute cocaine, distribution of cocaine, and distribution of marijuana; Gomez-Vigil was sentenced to thirteen years in prison. The conviction and sentence were affirmed by the Sixth Circuit.

Following his conviction, Gomez-Vigil engaged in a series of pro se challenges to his conviction and sentence including his "Motion Under 18 U.S.C. Rule 33 and or 28 U.S.C. Sec. 2255" which stated, inter alia:

Defendant was convicted after a trial by jury. During trial he requested a Court interpreter appointed but this court denied the request. This request was made because defendant being from El Salvador and not formally educated in the English language was unable to adequately understand the case that was pending and was unable to adequately assist counsel.

....

Defendant herein faced a very serious charge that mandated his Sixth Amendment rights to confrontation and effective assistance of counsel be preserved during trial. Because of the limited and minimal understanding of the English language, defendant did not get this when this court denied the request for an interpreter.... [I]t follows that it was the duty of this court to appoint an interpreter when the defendant requested and by failing to do so, this court committed error which was prejudicial beyond reasonable doubt.

....

[Moreover,] [d]uring deliberations, the trial jurors asked to review the testimony of Allen Guest, a key witness. The Honorable Judge Newblatt came out of his chambers very furious in the presence of the jurors stating that he knew that the defendant was guilty and further went on to state that the Judge did not have to allow the jurors to hear the requested testimony but will. As set forth in the declaration, the judge threw his books on the bench making a loud noise from anger. The Court staff began playing the tape and the judge left. In about 5 minutes the judge called the clerk, the clerk shut the tape, told the jurors that the tape recorder was broken and hence they had no right to hear the testimony. This is a due process violation denying a fair trial.

Gomez-Vigil's "Motion Under 18 U.S.C. Rule 33 and or 28 U.S.C. Sec. 2255" at 1-4.

Gomez-Vigil attached a signed and dated "Declaration in Support" to his motion for a new trial. The "Declaration in Support" stated (in its entirety):

I, Edagr [sic] Gomez-Vigil first duly sworn upon oath state under the penalty of perjury the following statements are true and correct, based on my own and personal knowledge and I will testify if so called to:

1. I asked for an interpreter because I cannot understand English very well but my request was denied;

2. Because I cannot understand English well I have now realized after inmates translated my testimony that there were material falsities;

3. With an interpreter I would have answered otherwise;

4. I am indigent and cannot hire an inteepreter [sic] and could not than [sic];

5. I did not adequately understand my lawyer due to language barrier;

6. When jurors asked to hear the testimony Judge Newblatt came out of his chambers very angry telling them in my presence that the judge new [sic] I was guilty and that he had no duty to allow them to hear my trial testimony of Allen Guest but he will and at the same time throwing his book on the bench;

7. He left and his clerk played the tape;

8. The judge called, the clerk stopped the player and told the jurors they cannot hear the testimony anymore;

9. Based on this the entire testimony was not heard;

10. I am asking an evidentiary hearing be held and a lawyer appointed so Gomez-Vigil's April 3, 1989 "Declaration in Support."

that I call jurors and interview them similar to that in US v. Ianniello 866 F2d 540 (2nd Cir 1989).

In response, the government filed a brief which stated (in its entirety):

On November 7, 1986, the defendant was found guilty of cocaine trafficking by a jury. He was sentenced on February 17, 1987. On November 13, 1987, his conviction was affirmed by the 6th Circuit Court of Appeals.

In his newest motion, he claims that he is not fluent in English and should have been granted an interpreter during the trial. ¹ The defendant has failed to refer to a statute giving this court jurisdiction over the issue. 28 U.S.C. Sec. 2255 only deals with illegal sentences. Further, the sentencing court is not required to entertain a second motion for similar relief under this statute. In file 88-CV-40258-FL, this honorable court denied a previous pro se challenge to the sentencing.

Defendant also refers to Rule 33 of the Rules of Criminal Procedure. This rule requires that assertions of newly discovered evidence be brought within two years of the final judgment. Defendant's brief does not include newly discovered evidence and two years have expired. A request for a new trial on any other grounds must be made within seven days of the verdict. As such, Rule 33 of the Rules of Criminal Procedure does not apply to this Motion.

WHEREFORE, the government requests this honorable court to deny defendant's Motion under 18 U.S.C. Rule 33 and or 28 U.S.C. Sec. 2255.

¹ This issue was handled during the trial. In addition, the very nature of defendant's brief demonstrates that he is fluent in English.

Appellee's April 13, 1989 "Brief in Support of Answer to Motion Under 18 U.S.C. Rule 33 and or 28 U.S.C. Sec. 2255" at 1-2 (footnote omitted).

On April 17, 1989, District Court Judge Newblatt denied Gomez-Vigil's motion: "IT IS HEREBY ORDERED that defendant's Motion is DENIED for the reasons stated in the Government's answer and brief," adding (in a footnote) that "[t]he Court hereby notes that the patent falsity of defendant's allegations may be a basis for future prosecutions." District Court's April 17, 1989 Order.

On May 19, 1989, a federal grand jury issued a two-count indictment charging Gomez-Vigil with perjury:

COUNT ONE

That on or about April 3, 1989, in the Eastern District of Michigan and elsewhere, EDGAR GOMEZ-VIGIL, defendant herein, did make a false material declaration under penalty of perjury in a proceeding ancillary to federal court proceeding, to wit: that he could not understand English well, the aforesaid declaration of EDGAR GOMEZ-VIGIL, as he then and there well knew, was false, as he did in fact competently understand English; in violation of Title 18, United States Code, Section 1623.

COUNT TWO

That on or about April 3, 1989, in the Eastern District of Michigan and elsewhere, EDGAR GOMEZ-VIGIL, defendant herein, did make a false material declaration under penalty of perjury in a proceeding ancillary to federal court proceeding, to wit: that the Honorable Stewart A. Newblatt told the jury that he knew EDGAR GOMEZ-VIGIL was guilty in a cocaine-trafficking trial; the aforesaid declaration of EDGAR GOMEZ-VIGIL, as he then and there well knew, was false, as it did not occur; in violation of Title 18, United States Code, Section 1623.

Joint Appendix at 7-8.

Gomez-Vigil's perjury trial was held before District Court Judge Suhrheinrich on February 12-13, 1990. Special Agent William Dodson and Special Agent Jack Geller testified that they had had no difficulty communicating with Gomez-Vigil in English during their drug-trafficking investigation. Audio tapes of Gomez-Vigil's direct and cross-examination (from his drug-trafficking trial) were played to the jury to demonstrate the appellant's ability to speak English. Moreover, numerous witnesses testified that Judge Newblatt did not tell the jury that Gomez-Vigil was guilty of drug-trafficking. Gomez-Vigil took the stand and indicated that he could not speak English very well, adding that a jailhouse lawyer "prepared the motion and 'Declaration in Support' which Appellant signed and filed directly with Judge Newblatt who presided over his previous trial." Appellant's Brief at 3. Moreover, "Appellant further explained that he believed that the jury's request during deliberations to replay the testimony angered Judge Newblatt. He interpreted Judge Newblatt's leaving the court while the tape of the testimony was played as proof of his anger. When the tape broke in the middle of the testimony, Appellant interpreted Judge Newblatt's not ordering the balance of the testimony to be played as a purposeful attempt to influence the jury against him." Id.

On February 13, 1990, the jury found Gomez-Vigil guilty of both perjury counts. On May 7, 1990, Gomez-Vigil was sentenced to concurrent 24-month terms (which represented a downward departure from the 51-63 month Sentencing Guidelines' range recommended in the presentence report).

Gomez-Vigil thereafter filed a timely notice of appeal.

II.

Gomez-Vigil's April 3, 1989 statements were deemed perjurious by the district court because the appellant offered the untruthful statements "under the penalty of perjury." See Appellant's April 3, 1989 "Declaration in Support." ¹ 18 U.S.C. Sec. 1623 ("False declarations before grand jury or court") provides:

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to...