U.S. v. Gonzalez, 95-4422

• Decision Date: 26 September 1997
• Docket Number: No. 95-4422,95-4422
• Citation: 122 F.3d 1383
• Parties: 11 Fla. L. Weekly Fed. C 587 UNITED STATES of America, Plaintiff-Appellee, v. Mario M. GONZALEZ, a.k.a. Nene, a.k.a. Alex Garcia, a.k.a. Jorge Perez, a.k.a. Jesus Hernandez, a.k.a. El Nene, a.k.a. Miguel, a.k.a. Mario Gonzalez, a.k.a. Alex Pino, a.k.a. Angelberto Marcias, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1383

122 F.3d 1383

11 Fla. L. Weekly Fed. C 587

UNITED STATES of America, Plaintiff-Appellee, v. Mario M. GONZALEZ, a.k.a. Nene, a.k.a. Alex Garcia, a.k.a Jorge Perez, a.k.a. Jesus Hernandez, a.k.a. El Nene, a.k.a Miguel, a.k.a. Mario Gonzalez, a.k.a. Alex Pino, a.k.a Angelberto Marcias, Defendant-Appellant.

No. 95-4422.

United States Court of Appeals, Eleventh Circuit.

Sept. 26, 1997.

Michael Blacker, Coconut Grove, FL, Judith H. Mizner, Newburgport, MA, for Plaintiff-Appellee.

Kendall Coffey, U.S. Attorney, Carol Herman, Eduardo I. Sanchez, Dawn Bowen, Miami, FL, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and EDMONDSON, Circuit Judges, and ROSENN ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Late in 1989, warrants for the arrest of the defendant, Mario M. Gonzalez, were issued in the District of Puerto Rico and the Southern District of Florida. The U.S. Marshal's Service began looking for Gonzalez shortly thereafter. In their search for Gonzalez, the marshals monitored telephone calls, surveilled friends and family members, and interviewed informants. As a result of these efforts, the marshals came to believe that Gonzalez was registered at the Princess Motel, Room 268, in Miami, Florida under the false name of "Jorge Perez."

Deputy Marshals Branyon and McDermott--along with other marshals--therefore put the Princess Motel under surveillance. Branyon checked the parking lot and interviewed the front desk clerk, who was unable to identify a picture of Gonzalez as Jorge Perez, the occupant registered in Room 268. Branyon compared the handwriting of the person who had checked into Room 268 with a sample of Gonzalez's. Branyon concluded that there were similarities and that, based on everything he had seen, it was likely that Jorge Perez was really Gonzalez. Branyon ordered officers to the Princess Motel so that the entrances could be blocked, and Room 268 was monitored.

Around 3:00 a.m., Branyon returned to the front desk and observed that the control panel indicated that the door between Room 268 and the adjoining parking garage was being opened. He informed the other officers of this development. A short time later, Branyon observed a red Blazer leave Room 268's parking spot. The Blazer proceeded through the parking lot until its path was blocked by a City Police car and a U.S. Marshal vehicle. The Blazer stopped; Agent Branyon yelled "Police. Everyone out of the vehicle."

At this point, the driver of the Blazer endeavored to flee the parking lot, seemingly without regard for persons and vehicles in its path. The agents on the scene began firing at the Blazer. The Blazer nearly hit two different agents; then the Blazer paused momentarily at a chain-link fence, behind which sat two U.S. Marshal vehicles blocking the Blazer's path. The Blazer's occupants were again instructed to stop and to get out of the vehicle; instead, the Blazer repeatedly rammed the fence, finally breaking through and ramming the Deputy Marshals' cars.

The Blazer eventually ran aground on a stump; its occupants were apprehended and arrested. A search of the car revealed a briefcase containing a pipe bomb. Gonzalez made post-arrest statements indicating that he knew he was wanted by the police. Three days later, Deputy Marshal Godsk revisited the Blazer at the impound lot and searched the vehicle. When Godsk removed the cup holder from the console, he discovered a Glock pistol.

A grand jury indicted Gonzalez for (1) forcibly assaulting three United States Marshals by use of a dangerous weapon (the Blazer); (2) knowingly carrying a destructive device in relation to a crime of violence; (3) possessing a firearm while a fugitive from justice, and (4) knowingly possessing a destructive device not registered to him.

Gonzalez pled not guilty, and his case was tried to a jury. Gonzalez was found guilty by the jury on all counts and appealed.

Discussion ¹

A. Sufficiency of the Evidence

Gonzalez challenges several of his convictions on the ground that the government's evidence was insufficient to establish the offenses charged. Sufficiency of the evidence is a question of law, reviewed de novo; evidence is sufficient if "viewed in the light most favorable to the government, the jury could have found defendant guilty beyond a reasonable doubt." United States v. Farris, 77 F.3d 391, 394 (11th Cir.1996). The evidence need not "exclude every reasonable hypothesis of innocence." Id. at 395.

1. Forcible Assault of a U.S. Marshal and Carrying a Destructive Device During and In Relation to the Assault

Section 111 of Title 18 provides, in pertinent part:

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a U.S. Marshal] while engaged in or on account of the performance of his official duties ... shall be fined under this title or imprisoned not more than three years, or both.

The attempted or threatened injury must be "an intentional act wilfully done without legal excuse." Burke v. United States, 400 F.2d 866, 867 (5th Cir.1968) Gonzalez argues that the evidence does not establish that he intentionally directed force at the three officers he allegedly tried to assault with his Blazer. Instead, Gonzalez argues that the evidence is just as consistent with his contention (made at trial) that he was "simply driving, head down, attempting to flee."

The three U.S. Marshals--McDermott, Moran, and Thornall--that Gonzalez allegedly assaulted with the vehicle each testified in detail about the circumstances that led them to think that the Blazer's driver intentionally tried to hit them in his attempt to flee the parking garage. Based on these officers' testimony, a reasonable jury could easily conclude that Gonzalez's acts in driving the Blazer at the marshals were intentional. The evidence, therefore, was sufficient to support this conviction. See United States v. Martin, 961 F.2d 161, 163 (11th Cir.1992).

Gonzalez also contends that the evidence was insufficient to support his 18 U.S.C. § 924(c) conviction for using or carrying a destructive device during and in relation to a crime of violence (the assault). He argues that the destructive device--here, a pipe bomb--was merely present in the Blazer, not used in relation to the assault on the marshals. Gonzalez points to the lack of fingerprints found on the bomb, the location of the pipe bomb inside a briefcase wedged underneath the passenger seat of the Blazer, the fact that no witnesses saw the bomb until after the assault had ended, and the conflicting testimony on whether anyone had seen Gonzalez reaching toward the briefcase in the Blazer.

At least one marshal--Godsk--testified, however, that when the Blazer stopped, Gonzalez seemed to reach to his right "as though he was [sic ] attempting to get something with his right hand...." This evidence, combined with the pipe bomb's location in the Blazer, was sufficient for the jury to infer that Gonzalez was reaching for the pipe bomb, thus carrying it "in relation to" the assault.

2. Fugitive in Possession of a Firearm

Gonzalez argues that the evidence proffered in support of his conviction under 18 U.S.C. § 922(g)(2) for being a fugitive in possession of a firearm failed to prove that he was either: (1) a "fugitive" as defined by the statute, or (2) that he knowingly possessed the gun.

The term "fugitive from justice" is defined in 18 U.S.C. § 921(a)(15) as "any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding." Gonzalez argues that, although he was indicted in Puerto Rico on federal drug charges, the government produced no evidence that he fled to the State of Florida. He contends that, because he need not have been physically present in Puerto Rico to have committed the alleged crimes, the indictment alone cannot support a finding that he was ever outside of Florida.

The government responds that "Gonzalez's argument misses the mark because the relevant inquiry is whether Gonzalez purposely stayed away from Puerto Rico to avoid the charges pending against him." For support, the government cites United States v. Fonseca-Machado, 53 F.3d 1242, 1243-44 (11th Cir.1995), in which we stated that "[m]ere absence from the jurisdiction in which a crime occurred does not render the suspect a fugitive from justice; he must be found to have absented himself from the jurisdiction with the intent to avoid prosecution."

Here, the evidence was insufficient to allow a reasonable jury to conclude that Gonzalez was ever in Puerto Rico, much less that he intentionally absented himself--that is, took himself away--from Puerto Rico to avoid prosecution there. In fact, the government was unable to produce evidence that Gonzalez had ever been in Puerto Rico or, for that matter, had been outside of Florida during the pertinent time. Gonzalez, therefore, does not meet the statutory definition of "fugitive"; his conviction under 18 U.S.C. § 922(g)(2) is reversed.

3. Possession of an Unregistered Destructive Device

Gonzalez also argues that his conviction for possession of an unregistered destructive device under 26 U.S.C. § 5861(d) is based on insufficient evidence. He says the government failed to prove that the pipe bomb was unregistered in the National Firearms Registration and Transfer Record. Gonzalez's contention is that the records search conducted by the government only searched for registration in Gonzalez's name and in five of his seven known aliases. The defendant argues that omission of two aliases rendered the search unreliable and inadmissible; it demonstrated lack of due diligence. ² His contention, however, is meritless. Gonzalez has cited no statute or case--and we are aware of none--that requires the government to do more than conduct a records search under a defendant's legal name to establish (for the purpose of...