U.S. v. Gomez

• Decision Date: 11 September 2009
• Docket Number: Docket No. 06-5319-cr (L).,Docket No. 06-5697-cr (CON).,Docket No. 06-5690-cr (XAP).
• Citation: 580 F.3d 94
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Arceny GOMEZ, Defendant-Appellant-Cross-Appellee, Danny Reyes, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

580 F.3d 94

UNITED STATES of America, Appellee-Cross-Appellant, v. Arceny GOMEZ, Defendant-Appellant-Cross-Appellee, Danny Reyes, Defendant-Appellee.

Docket No. 06-5319-cr (L).

Docket No. 06-5690-cr (XAP).

Docket No. 06-5697-cr (CON).

United States Court of Appeals, Second Circuit.

Argued: May 6, 2008.

Decided: September 11, 2009.

Laurie A. Korenbaum, Assistant United States Attorney for the Southern District of New York (Michael J. Garcia, United States Attorney, on the brief, Katherine Polk Failla, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee-Cross-Appellant.

John F. Kaley, Doar Rieck Kaley & Mack, New York, NY, for Defendant-Appellant-Cross-Appellee.

Patrick J. Joyce, New York, NY, for Defendant-Appellee.

Before: WINTER and HALL, Circuit Judges.^*

WINTER, Circuit Judge:

Arceny Gomez appeals from his conviction by a jury after a trial before Judge McKenna. He, along with Danny Reyes, who did not appeal but whose sentence is a subject of the government's cross-appeal,¹ was convicted of: (i) conspiring to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); (ii) committing a Hobbs Act robbery (or aiding and abetting thereof) in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; (iii) conspiring to possess with intent to distribute one kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and (iv) using and carrying (or the aiding and abetting thereof) a firearm during and in relation to a crime of violence and a drug trafficking crime in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2.

After the verdict, the district court vacated both Hobbs Act convictions on the ground that the evidence of an effect on interstate commerce was insufficient as a matter of law. Gomez appeals from his conviction and sentence on the Section 924(c) charge. The government cross-appeals from the district court's vacating of the Hobbs Act convictions and failure to impose a ten year mandatory minimum sentence on the Section 924(c) count. We affirm on Gomez's appeal and reverse on the government's cross-appeal.

BACKGROUND

a) The Evidence

Because the jury convicted Gomez and Reyes on all counts, we view the evidence in the light most favorable to the government. See United States v. Chavez, 549 F.3d 119, 124 (2d Cir.2008).

Gomez and Reyes, along with two individuals named Ray Solis and Alfredo DeJesus, engaged in a botched robbery of a drug dealer named Rogelio Rivera, during which Rivera was shot and killed. The government's case consisted principally of testimony from DeJesus, post-arrest statements made by Gomez and Reyes, and telephone records and documents linking the conspirators around the time of the robbery and murder.

DeJesus testified that he discussed with Gomez the plan for the robbery, which they intended would net three kilos of cocaine. Solis was to pose as a drug buyer, using Gomez's black Acura because they believed that it was the kind of car a drug dealer would use. The plan was to offer Rivera fake money for the drugs, and, while Rivera inspected the money, draw their guns and rob him of the cocaine.

Reyes, who lived both in Connecticut and the Bronx, was the defendants' connection with Rivera. He had sufficient prior contact with Rivera that he could set up the proposed deal to acquire cocaine and that Rivera trusted him to broker the deal with Solis, a person Rivera had not previously met. While the four were on their way to a restaurant in the Bronx where they were to meet with Rivera, they stopped their cars and got out. According to DeJesus, Solis and Reyes adjusted their waistbands in a manner that suggested that each had a gun. Thereafter, Solis and Reyes got into the Acura and continued driving while Gomez and DeJesus followed in a white van. Solis and Reyes picked up Rivera near the restaurant. Those three then traveled together in the Acura to the site of the intended robbery. DeJesus and Gomez followed in the white van. Reyes and Solis entered a building with Rivera, while DeJesus and Gomez stayed outside to serve as lookouts during the intended robbery. After a short time, a shot rang out. Solis and Reyes ran out of the building and drove away in the Acura, while DeJesus and Gomez followed in the van. When they stopped to switch cars, Reyes indicated that Solis had shot Rivera. Solis said that the robbery had netted only one kilogram of cocaine.

When Reyes and Gomez were interviewed after their arrests, each substantially corroborated DeJesus's account of the robbery. Reyes's statement indicated that the plan had been for all the perpetrators to use firearms in the robbery.

In order to show Gomez's intent in anticipation of his testimony outlined below, DeJesus testified as to several other drug robberies committed by Gomez, including one in which he and Gomez had netted 1.5 kilograms of heroin in or around February 1998, and another in the spring of 1998 involving one kilogram of cocaine. Finally, DeJesus described a third robbery that was planned to net fifty kilograms of cocaine. DeJesus discussed this robbery with Gomez and the other perpetrators, hoped to be taken along, but ultimately he did not go. DeJesus testified that Gomez told him that the robbery was "triumphant" and that he and Gomez celebrated its success. Gomez then gave DeJesus four kilograms of cocaine that DeJesus sold to a friend of his.

Gomez testified in his own defense and stated that while he did participate in the robbery of Rivera, he did so only as a paid informant for the Drug Enforcement Administration ("DEA"). Gomez had indeed been acting as an informant for the DEA in some matters but for several days did not inform his handlers about the robbery in question. He sought to explain this delay by stating that his DEA handler did not speak Spanish well and that an officer he worked with in the New York Police Department ("NYPD") had given Gomez a disconnected pager number. In response, the government presented testimony from Gomez's NYPD handler indicating that the officer's pager number had not changed or been disconnected and that Gomez could have informed him of the robbery at a debriefing session a few days after the robbery. Instead, Gomez did not mention the robbery until he had been arrested for it.

b) Jury Instructions, Post-Trial Proceedings, and Sentencing

The judge gave several jury instructions pertinent to this appeal.

Regarding the interstate commerce element of the Hobbs Act² conspiracy count, the district court told the jury that:

[T]he government must prove . . . that . . . had the robbery been completed interstate commerce would have been or potentially would have been affected in some way[,] even if the effect is slight. . . . Such robbery need only affect interstate commerce in any way or degree, even if the effect is only minimal . . . . The government satisfies its burden of proving an effect . . . if it proves beyond a reasonable doubt any effect, whether it was harmful or not.

The court also instructed that:

Congress has determined that all narcotics activity, even purely local narcotics activity, has a substantial effect on interstate commerce. Thus, if you find that the object of the robbery was to possess narcotics with the intent to distribute them, you may find this element satisfied.

With respect to the substantive Hobbs Act count, the judge referred the jury to the above-quoted instructions on the conspiracy count. The judge also noted that substantive Hobbs Act robbery requires a taking of property, "by means of actual or threatened force. . . ."

With respect to the Section 924(c)³ count, the district court charged the jury that "[i]n order to convict the defendant you must find that the government has proven beyond a reasonable doubt his involvement in at least one of the underlying crimes of violence or the drug-trafficking crime." The judge did not instruct the jury that it had to be unanimous as to which crime was the predicate for a Section 924(c) conviction.

The jury reached a guilty verdict on all counts. Gomez and Reyes moved to set aside their convictions under the Hobbs Act on the grounds that there was legally insufficient evidence of the requisite effect on interstate commerce. The district court agreed and vacated the verdict on both Hobbs Act counts.

Gomez alone argued that his Section 924(c) conviction should also be vacated because the jury was not instructed that it had to be unanimous on the selection of a specific predicate crime and because the vacating of the Hobbs Act counts had eliminated two of the three possible predicates, rendering it impossible to know which alleged predicate(s) the jury had found. Although the district court agreed that the jury should have been instructed that they had to be unanimous on a particular predicate, it found that there was no need to vacate the Section 924(c) conviction. It reasoned that had the jury been properly instructed, it would have selected the remaining drug distribution count as a predicate.

In sentencing Reyes, the district court calculated his base offense level using the three kilograms of cocaine that the robbers had planned to steal rather than the one kilogram actually obtained. This resulted in a base offense level of 28 for Reyes.

On Reyes's Section 924(c) convictions, the district court imposed the five year minimum sentence for use of a gun rather than the ten year mandatory minimum sentence for discharging it. See 18 U.S.C. § 924(c)(1)(A); supra note 3. The district court noted that the jury had not been asked to specify which gun(s) was the basis for the Section 924(c) convictions. The court then reasoned that because there was some evidence that two guns were involved but only one was discharged, it was impossible to say whether the jury had convicted Reyes under Section 924(c) for the gun that was discharged. Accordingly, the five year sentence for...