U.S. v. Gomez-Rosario

• Decision Date: 12 August 2005
• Docket Number: No. 03-2719.,03-2719.
• Citation: 418 F.3d 90
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES, Appellee, v. Fernando GÓMEZ-ROSARIO, Appellant, Defendant.

418 F.3d 90

UNITED STATES, Appellee, v. Fernando GÓMEZ-ROSARIO, Appellant, Defendant.

No. 03-2719.

United States Court of Appeals, First Circuit.

Heard May 5, 2005.

Decided August 12, 2005.

COPYRIGHT MATERIAL OMITTED

Andrew Nathanson, with whom Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. was on brief, for appellant.

Germán A. Reickehoff, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Following a jury trial, defendant Fernando Gómez-Rosario ("Gómez") was acquitted of conspiring to import heroin, see 21 U.S.C. §§ 952(a), 963, but convicted of conspiring to possess heroin, see 21 U.S.C. §§ 841(a)(1), 846. The district court subsequently sentenced the defendant under the mandatory guidelines to 121 months in prison and three years of supervised release. On appeal, Gómez asserts, inter alia, (1) that the district court¹ violated his Sixth Amendment rights by denying his request to proceed pro se, (2) that the court's instructions to the jury constructively amended the indictment in violation of the Fifth Amendment, (3) that there was insufficient evidence to support his conviction, (4) that the delay between his arrest and the filing of the superseding indictment violated his constitutional rights, and (5) that he should be resentenced in light of United States v. Booker. Although the first claim poses important questions regarding the right of self-representation and the appointment of standby counsel, we ultimately conclude that Gómez's right to conduct his own defense was not violated in this case. The second, third and fourth claims are also without merit. Concluding that Booker error was present here, however, we remand for resentencing.

I.

We turn to the trial record for the following background, presenting the facts in the light most favorable to the verdict. See Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 229 (1st Cir.2005).

A. The heroin transaction

On April 21, 2000, customs agents intercepted Eugene Sarruco at the airport in Carolina, Puerto Rico following his arrival on a flight from Curacao. Suspecting that Sarruco was a drug courier, the agents took him to the airport's medical facility where he was arrested after passing five pellets of heroin, each containing slightly less than eight grams of heroin.

Sarruco told agents that he had ingested eighty-five heroin pellets² and carried them to Puerto Rico on behalf of a drug dealer in Curacao named Andrés Hueck. Upon his arrival in Puerto Rico, Sarruco was under instructions to go to the Hotel San Jorge or the Hotel Iberia. The buyer — whose identity Sarruco did not know — would meet him at the hotel with a bottle of laxatives and pick up the heroin in exchange for $7,000.

With Sarruco's cooperation, the agents set up a "controlled delivery" of the heroin pellets. They had Sarruco call Hueck with a message that he was in Room 209 at the Hotel Iberia. Hueck told Sarruco that someone would be coming, presumably to pick up the heroin. Agent Luis Carmona, who was enlisted to act undercover as Sarruco's stand-in, took the five pellets that Sarruco had expelled to Room 209 of the Hotel Iberia. Agent Carmona put one of the pellets in a drawer in the night stand and put the other four pellets, wrapped in toilet paper, in a dresser drawer. Other agents set up audio and video surveillance of Rooms 209 and 210, as well as surveillance outside the hotel.

Sometime after 4 p.m. on April 21, 2000, Gómez drove up to the Hotel Iberia in a green Ford Windstar. He parked the van, leaving two passengers inside, and went into the hotel. A Datsun parked in front of the van, and its driver also went inside the hotel. When the Datsun's driver returned, two agents detained him for questioning until a third agent exited the hotel, yelling that they had the wrong person and that the man in the room was the driver of the green van. One of the passengers in the van jumped into the front seat and drove away. The agents pursued the van to a dead end street, where the van's passengers fled on foot. Upon searching the van, the agents found a loaded gun in plain view between the front seats. They also seized a rental agreement listing Fernando Gómez as an "additional renter."

In the meantime, Gómez arrived at Room 209 of the hotel, where Agent Carmona was waiting pursuant to the instructions that Hueck had given Sarruco. Carmona, posing as Sarruco, invited Gómez inside and gave him the four pellets wrapped in toilet paper. When Gómez asked Carmona how many he had swallowed, he responded eighty-five. Carmona told Gómez that he was having trouble expelling the remaining pellets. Gómez told him that he needed a laxative and offered to get him one. Gómez then placed the pellets back in the dresser drawer. Carmona went into the bathroom, ostensibly because he was having stomach cramps. Another agent, who had been hiding in the closet, then came out and arrested Gómez.

B. Legal proceedings

1. First indictment

On May 3, 2000, a grand jury returned a three-count indictment against Gómez and Sarruco. Count One charged them with aiding and abetting the importation of approximately 975 grams of heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 963. Count Two charged the defendants with aiding and abetting the unlawful possession with intent to distribute approximately 975 grams of heroin in violation of 21 U.S.C. § 841(a)(1). Count Three charged Gómez with possessing a firearm in furtherance of a drug crime (specifically, possession of heroin with intent to distribute) in violation of 18 U.S.C. § 924(c)(1)(A).

Gómez went to trial on February 19, 2003.³ The government presented several witnesses, including Sarruco and Agent Carmona, and played the audio and video surveillance tapes of Gómez's interaction with Agent Carmona. Gómez rested without presenting any evidence. At the close of evidence, he moved for a judgment of acquittal on all counts. The district court granted the motion as to Counts Two (possession of heroin with intent to distribute) and Three (possession of a firearm). With respect to Count Two, the court reasoned that Gómez did not exercise dominion and control over the drugs when he briefly inspected them in the hotel room, nor had he aided and abetted Sarruco's possession of drugs because the two did not have a prior relationship. Because Count Three alleged possession of a gun in furtherance of the crime of drug possession, it necessarily turned on Count Two. Count One (importation) went to the jury, which could not agree on a verdict. The court declared a mistrial and ordered the case to be reset for trial.

2. Superseding indictment

Instead of retrying Gómez on the importation count, the government obtained a two-count superseding indictment on March 12, 2003. Count One charged Gómez with conspiring to import into the United States approximately 975 grams of heroin in violation of 21 U.S.C. §§ 952(a) and 963. Count Two charged Gómez with conspiring to possess with intent to distribute approximately 975 grams of heroin in violation of 21 U.S.C. §§ 841(a) and 846.

The charges in the superseding indictment were tried before a jury in June 2003. The government presented substantially the same evidence that it had offered during the first trial. The defense presented two witnesses, Gómez and his mother, neither of whom had testified at the first trial. Gómez testified to an alternative version of events on the afternoon of his arrest. According to his testimony, he went to the Hotel Iberia on April 21 to visit a woman named Bonnie whom he met the previous night while out with friends. He knocked on the door of Room 209 believing that it was Bonnie's room, and was surprised when a male (Agent Carmona, posing as Sarruco) emerged from the room. As soon as Gómez entered the room, the man told him that he was not feeling well and began to rub his stomach. Gómez asked the man if he was all right. The man responded that he needed something to help him "evacuate," and Gómez asked if he meant a laxative. The man then handed Gómez a package (the four heroin pellets wrapped in toilet paper), which Gómez put down without looking at its contents.⁴ After saying that he had been in pain for several hours, the man excused himself to use the restroom and Gómez was arrested. Gómez's mother testified regarding her relationship with Gómez and her contact with him in the week leading up to his arrest.

After approximately seven hours of deliberations, the jury found that Gómez was not guilty as to Count One (conspiracy to import) but guilty as to Count Two (conspiracy to possess with intent to distribute). In response to a question on the jury verdict form, the jury decided that the amount of heroin involved was less than 100 grams.

On November 4, 2003, the district court sentenced Gómez to 121 months in prison, the bottom of the applicable guidelines range, and three years of supervised release.

II.

A. Request for Self-Representation

It is well-settled that the Sixth Amendment encompasses a right to self-representation by criminal defendants. See Faretta v. California, 422 U.S. 806, 814-17, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A criminal defendant has the right to "conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

1. History

To set Gómez's Sixth Amendment claims in context, we begin by reviewing the history of his representation in this case.

By April 2002, some two years after he was arrested and nine months before his first trial, Gómez — though represented by counsel — had already filed more...