U.S. v. Gonzalez

• Decision Date: 19 June 2008
• Docket Number: No. 07-10326.,07-10326.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Carlos GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

528 F.3d 1207

UNITED STATES of America, Plaintiff-Appellee, v. Michael Carlos GONZALEZ, Defendant-Appellant.

No. 07-10326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2008.

Filed June 19, 2008.

T.S. Hartzell, Attorney at Law, Tucson, AZ, for the defendant-appellant.

Bradley W. Giles, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-06-00152-JMR.

Before: B. FLETCHER and PAMELA ANN RYMER, Circuit Judges, and KEVIN THOMAS DUFFY,^* District Judge.

BETTY B. FLETCHER, Circuit Judge:

Michael Gonzalez, a Border Patrol agent, appeals his jury conviction for possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and for use of a firearm in furtherance of that drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(I). Gonzalez, in uniform and carrying his service-issued sidearm, was caught on videotape stealing a distribution quantity of marijuana, while purporting to assist an Arizona Department of Public Safety ("DPS") officer with a traffic stop. A jury found that the weight of the stolen marijuana was 10 kilograms. Gonzalez challenges the district court's denial of judgment of acquittal on both counts and its denial of a motion to dismiss the firearm charge for lack of jurisdiction and failure to state an offense. He further challenges the district court's adoption of the jury's finding regarding the weight of the stolen marijuana. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I. Factual background and procedural posture

Arizona DPS Officer Duckett stopped a pickup truck on a state highway in a remote desert area frequently used as a narcotics trafficking corridor. The driver and a passenger fled after the stop, abandoning the vehicle and its contents. Concealed within the bed of the truck were thirty bales of marijuana. When Officer Duckett activated his emergency lights, the dashboard-mounted video camera in his patrol car automatically initiated recording. Soon after Officer Duckett stopped the vehicle, three Border Patrol agents, dressed in civilian clothing and driving a personal vehicle, also stopped, identified themselves by showing their badges and guns, and offered assistance in the chase after the truck's occupants. Two agents pursued the occupants immediately. Officer Duckett then joined the chase with his service canine, leaving the third Border Patrol agent, Agent Rogers, behind to protect the vehicle and marijuana after performing a visual check to verify Rogers' credentials and his possession of a firearm. Gonzalez then arrived in uniform driving a marked Border Patrol vehicle and carrying his service-issued Baretta .40 caliber sidearm on his hip. After Gonzalez and Rogers conferred and inspected the vehicle together, Gonzalez told Rogers that he thought he heard a gun shot. Rogers left the area to investigate entrusting Gonzalez to guard the vehicle and the marijuana.

The videotape shows that during the short period Gonzalez was left alone with the vehicle, he removed one bale of marijuana from the bed of the pickup truck, rearranged the other bales to fill in the space left by the removed bale, and placed it in the trunk of his service vehicle. Agent Rogers returned, having found no evidence of shots fired. Shortly after taking the marijuana, Gonzalez made several cell phone calls to a relative who had been convicted for marijuana distribution in 1992. Of the thirty bales, the twenty-nine remaining in the truck were later weighed and found to weigh a total of about 304 kilograms, with an average weight per bale of 10.5 kilograms.

Gonzalez's theft of the marijuana was discovered thirteen days later during a routine review of video footage. An agent from the Department of Homeland Security Office of Inspector General ("OIG") was called in to investigate. The OIG agent questioned Gonzalez, confronting him with the videotape. On the day he was questioned by the OIG agent, Gonzalez resigned from the Border Patrol and surrendered his badge and weapon.

At his four-day trial, Gonzalez testified that he was not acting in his lawful capacity as a law enforcement officer when he took the marijuana bale and that based on his experience, he knew it was marijuana. He also testified that he did not know he was being videotaped. He did not object to the prosecutor's assertion that the bale weighed a little more than 10 kilograms. Photographs of several scenes from the videotape were admitted into evidence. They showed Gonzalez, with his face clearly visible, removing a bale, placing it into his service vehicle, and rearranging the remaining bales. Gonzalez filed a motion for judgment of acquittal at the close of the government's case.

The jury convicted Gonzalez of possession with intent to distribute less than 50 kilograms of marijuana (resulting in a 30-month sentence), and use of a firearm in furtherance of that drug trafficking offense (resulting in a consecutive 60-month mandatory-minimum sentence). Responding to an interrogatory, it also found beyond a reasonable doubt that the weight of the marijuana was 10 kilograms. After the jury verdict, Gonzalez filed a motion for judgment of acquittal, and a motion to dismiss the firearm charge for lack of jurisdiction, both of which were denied. Gonzalez was sentenced consecutively for a total term of 90 months, a 36-month term of supervised release and a fine of $30,000. He timely appealed from the sentence and conviction. Gonzalez filed a written motion within seven days of the date of the verdict renewing his earlier motion for judgment of acquittal after the close of the government's case.

II. Motions for judgment of acquittal.

A) Post-verdict motion to renew a judgment for acquittal.

In order to preserve the sufficiency of the evidence issue on appeal, the defendant must move for a judgment of acquittal during the trial pursuant to Fed. R.Crim.P. 29(a). Gonzalez filed a motion for judgment of acquittal at the close of the government's case but did not move for a judgment of acquittal at the close of all of the evidence. The government argues that for this reason, we may review his sufficiency of the evidence claim only to prevent a manifest miscarriage of justice or for plain error. See United States v. Ross, 338 F.3d 1054, 1057 (9th Cir.2003), cert. denied, 540 U.S. 1168, 124 S.Ct. 1187, 157 L.Ed.2d 1218 (2004). However, we have traditionally imposed this higher standard of review only in cases where a motion for judgment of acquittal is never renewed. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200-1201 (9th Cir. 2000). Here, Gonzalez did renew his earlier motion for judgment of acquittal by filing a written motion within seven days of the date of the verdict.

We have not squarely addressed whether, as here, a timely post-trial motion for a judgment of acquittal, pursuant to Fed. R.Crim.P. 29(c)(1) preserves a sufficiency claim for appellate review.¹ The First and Fifth Circuits have addressed the issue and held that a Rule 29(c) motion does preserve a sufficiency claim. See United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir.1992) (movant under Rule 29(c) is "entitled to the benefit of the same standard of appellate review" as movant under Rule 29(a)); United States v. Allison, 616 F.2d 779, 784 (5th Cir.1980) (per curiam) ("Under Rule 29(c) of the Federal Rules of Criminal Procedure, [the defendant] has preserved her right of appellate review."), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980); see also United States v. Teague, 956 F.2d 1427, 1433 (7th Cir. 1992) (defendant waives sufficiency claim by "fail[ing] to renew his motion for acquittal at the close of trial or within seven days after the verdict pursuant to Federal Rule of Criminal Procedure 29(c).").

We now join our sister circuits in holding that a timely post-verdict motion under Rule 29(c)(1), renewing an earlier motion for judgment of acquittal after the close of the government's case at trial, constitutes a sufficient "renewal" of the motion to preserve the issue for de novo appellate review. The rule specifically provides that a defendant may renew a motion for acquittal "within 7 days after a guilty verdict" and "is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge." Fed.R.Crim.P. 29(c). We read this provision to state that even absent any motion for judgment of acquittal at trial, a defendant who files a timely post-trial motion for acquittal stands on the same footing—and is entitled to the benefit of the same standard of appellate review—as a defendant who moves for acquittal at the close of all the evidence. See Castro-Lara, 970 F.2d at 976; Allison, 616 F.2d at 784; see also 2A Charles A. Wright, Federal Practice and Procedure § 465 (2008).

Because Gonzalez's post-trial motion for acquittal was timely—it was filed within seven days of the date of the verdict—there was no waiver; he is entitled to review for sufficiency of evidence. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When a claim of sufficiency of the evidence is preserved by making a motion for acquittal at the close of the evidence, this court reviews the district court's denial of the motion de novo. See United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir.2005). We now apply this standard to review the district court's denial of judgment of acquittal on both counts.

B) Motions for judgment of acquittal on the 18...