U.S. v. Gonzalez-Ramirez
| Decision Date | 25 March 2009 |
| Docket Number | No. 07-1880.,07-1880. |
| Citation | 561 F.3d 22 |
| Parties | UNITED STATES of America, Appellee, v. Fernando GONZALEZ-RAMIREZ, a/k/a Fernando, Appellant, Defendant. |
| Court | U.S. Court of Appeals — First Circuit |
Mary E. Rogers, Assistant United States Attorney, were on brief, for appellee.
Before LYNCH, Chief Judge, MERRITT* and HOWARD, Circuit Judges.
Appellant Fernando Gonzalez-Ramirez ("Gonzalez") was convicted of conspiring to distribute and aiding and abetting the distribution of cocaine. He was sentenced to twenty years in prison. On appeal, Gonzalez claims that the district court erred in denying his pre-trial motion for a competency hearing and in admitting certain evidence. He also asserts that the evidence was legally insufficient to convict him, and that his sentence violated his constitutional rights. Finding no error, we affirm the conviction and sentence.
We review the facts in the light most favorable to the jury's verdict. United States v. Marin, 523 F.3d 24 (1st Cir.2008). In January 2006, law enforcement authorities were investigating two Rhode Island men, Estoredarico Bernard ("Belige"), and Eucraneo Severino ("Severino"). The investigation included surveillance of a liquor store that Belige owned and operated, an import/export business owned and operated by Severino, and Severino's residence.
During this time period, Gonzalez lived in Denver, Colorado, where he served as a middleman for Colorado-based cocaine dealers tied to Mexican drug cartels. His role was to find customers in the northeast United States. Belige was one such customer.
In late January, authorities eavesdropped on a telephone call from Gonzalez to Belige, in which Gonzalez left the message, Two days later, Belige listened to the message three times, and then returned the call, leaving the following message: Gonzalez returned the call and the two spoke for a short time. The conversation went as follows:
Belige1 ("B"): Hello.
Gonzalez ("G"): Oh, Hello, uncle, how have you been?
According to Central Falls, R.I., Detective Dorian Rave2, the above conversation was actually rife with coded language concerning the delivery of cocaine to Belige. For example, "there wasn't any" was an indication that Gonzalez had been out of contact because of a depleted cocaine supply; when he asked whether Belige was "working," Gonzalez was asking whether Belige was dealing drugs; finally, the discussion of "mileage"—18½ and 19—was actually the price per kilogram in thousands of dollars.
True to his word, Gonzalez called Belige later the same day. This shorter conversation went as follows:
Detective Rave decoded this conversation to mean that Gonzalez could go no lower than the $19,000 per kilogram price discussed earlier in the day. Despite the protest about the small profit, Belige agreed after Gonzalez informed him that a courier would leave the next morning (a Wednesday) and deliver the cocaine to Belige Saturday or Sunday.
On the following Monday, January 30, surveillance personnel observed Severino enter Belige's liquor store. He left the liquor store in his car, followed by a car with Colorado license plates. The Colorado car went into a warehouse at Severino's place of business. The driver of the Colorado car—later determined to be Gonzalez's cousin, Adalberto Gonzalez—left about an hour later. He was followed by federal agents to a nearby hotel. Later that day, agents approached Severino and obtained permission to search the warehouse, where they seized a duffel bag containing 11 sealed packages of cocaine, package sealing materials, and gasoline soaked wrappings and rags, which police theorized were used to protect the cocaine that had been hidden in the Colorado car's gas tank during transit.
After seizing the cocaine, police arrested Belige and Adalberto Gonzalez. At the request of the police, Belige called appellant to tell him that he and appellant's cousin had been arrested. Detective Rave subsequently called appellant, identifying himself as a police officer. During this conversation—which took place in Spanish—Gonzalez acknowledged that he had discussed the arrest with Belige. He admitted his status as the middleman for the Colorado distributors and the tasks he did for them, as well as the fact that he had negotiated the sale to Belige and enlisted his cousin to be the drug courier.
Gonzalez was indicted on one count of conspiring to distribute and possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of aiding and abetting the distribution and possession with intent to distribute the same amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.
The jury convicted Gonzalez on both counts after a three-day trial. He was sentenced to 240 months' imprisonment on each count, to be served concurrently. This timely appeal followed.
Gonzalez first argues that he is entitled to a new trial because the district court wrongfully denied his request for a competency examination and the related request for a continuance. The relevant facts may be sketched briefly.
On the day of jury selection, Gonzalez arrived at court in his jail-issued clothes, contrary to the advice of his attorney and the magistrate judge, who also discussed with him the potential negative ramifications of his choice of attire. Gonzalez said simply that he "just wanted to" wear the jail clothes. His attorney indicated that Gonzalez was going forward to trial against his advice—and despite "strong" evidence against him—because Gonzalez feared for his family's safety from members of the drug cartel with whom he had associated if he pled guilty and cooperated. A jury was selected, and trial was scheduled to begin two days later, February 8, 2007.
The next day, however, defense counsel filed motions seeking a competency hearing for Gonzalez and a continuance. The basis for the motions was an incident which occurred at the detention facility where Gonzalez was being held, in which he cut his wrists seriously enough to require transport to a hospital and sutures to repair the damage. He was seen by a staff psychologist before being taken to the hospital. Both the apparent suicide attempt and Gonzalez's prior refusal to wear civilian clothes to court were given as reasons to question Gonzalez's competency to stand trial.
The district court held a brief hearing3 on the competency issue. The judge asked defense counsel whether a pre-hearing conversation with Gonzalez demonstrated that he was unable to understand why he was in court, unable to communicate with or assist defense counsel or unable to participate in the trial. Counsel indicated that Gonzalez knew why he was in court and that he was communicating, although "he might not be focused on assisting counsel." The judge also asked a Deputy Marshal with knowledge of the incident for information on Gonzalez. He stated that Gonzalez had told the staff psychologist during a five-minute examination that he was not seeking to end his life, and that he was instead reacting to his pre-trial confinement and fears for his family's safety. The Marshal also told the judge that jail personnel with whom he had spoken had told him that Gonzalez understood "what's going on," and had not acted in any sort of delusional way. Finally, the judge spoke directly to Gonzalez, who said that he understood the roles of the judge, jury and attorneys.
The court denied both the motion to continue and the request for a competency...
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