U.S. v. Gonzalez

• Decision Date: 24 June 2009
• Docket Number: No. 07-1541.,07-1541.
• Citation: 570 F.3d 16
• Parties: UNITED STATES of America, Appellee, v. Domingo A. GONZALEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

570 F.3d 16

UNITED STATES of America, Appellee, v. Domingo A. GONZALEZ, Defendant, Appellant.

No. 07-1541.

United States Court of Appeals, First Circuit.

Heard October 8, 2008.

Decided June 24, 2009.

Gordon R. Blakeney, Jr. for appellant.

Robert Clark Corrente, United States Attorney, with whom Donald C. Lockhart and Adi Goldstein, Assistant United States Attorneys, were on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

A jury found appellant Domingo A. Gonzalez guilty of (1) conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. Gonzalez was also charged with, but acquitted of, two other counts of an indictment originally brought against six defendants. On appeal, Gonzalez alleges a number of errors in the district court's jury instructions that he contends require reversal. Specifically, he challenges the district court's instructions on the intent required to join a conspiracy, and, with respect to the possession count, constructive possession, Pinkerton liability, and aiding and abetting liability. Finding no error, we reject each of appellant's challenges and affirm his conviction.

I.

This case arises out of a drug transaction involving appellant and four other men: Christopher Garcia, Waskar Pena, Alejandro Pujols, and Cornelio Ozorio.¹ These men were the targets of a drug trafficking investigation jointly conducted by the United States Drug Enforcement Administration (DEA) and various Rhode Island law enforcement agencies. An authorized wiretap recorded a December 10, 2005 phone conversation in which Pujols told Pena that he was planning to go to Lawrence, Massachusetts (the town in which Gonzalez resided), to see if the "thing" was there so that he could "take it to [Pena] right away." That evening, DEA agents intercepted a number of additional calls between Pujols and Pena which, though apparently coded, were interpreted by the agents to concern an imminent drug deal for approximately two kilograms of cocaine. A recorded conversation between Pena and Ozorio, the buyer, corroborated this suspicion. On the same night, Gonzalez also spoke several times with Pujols, but because this information was obtained from written phone records (only Pena's phone line was tapped), there is no evidence of the content of these conversations.

The following day, December 11, 2005, Gonzalez traveled with Christopher Garcia in a Lincoln Town Car from Lawrence to 234 Gallatin Street in Providence, Rhode Island, the home of Waskar Pena. During the car ride, Gonzalez communicated with Pujols several times by phone, both before and after Pujols himself arrived at the Gallatin Street address at around 3:30 p.m. Just after 3:40 p.m., Pujols and Pena were observed by the surveillance team leaving the Gallatin Street house together getting into a minivan, and driving a short distance to Elmwood Avenue. Sergeant Russell Henry of the Cranston Police Department, one of the members of the surveillance team that day, testified that he watched the minivan containing Pena and Pujols perform a U-turn after reaching Elmwood Avenue and return to 234 Gallatin Street followed by the Lincoln Town Car containing Garcia and Gonzalez. The Lincoln parked in the driveway of 234 Gallatin where, according to Providence Detective Joseph Colanduono, Gonzalez and Garcia both "turned towards the rear of the seat and appeared to ... manipulat[e] something in the rear seat," before exiting the vehicle and entering the house with Pujols and Pena.

Shortly thereafter, Ozorio, the would-be buyer, arrived at 234 Gallatin and went inside. When he came back out a few minutes later, he was stopped by several of the agents, who conducted a pat-down frisk. During this frisk, a bag containing approximately one kilogram of cocaine fell from Ozorio's waistband to the ground. Agents seized the cocaine, arrested Ozorio, and entered the house to execute a search warrant. At first, they discovered only Pena, Pujols, and Garcia in the basement,² along with another kilogram of cocaine that had apparently been cut open for testing, a recently-used heat-sealer, packaging materials, and other drug paraphernalia. A short time later, as law enforcement officers were securing the premises and the suspects, Detective Petrillo of the Cranston Police found Gonzalez hiding under a pile of old carpeting and other debris in the basement, a location that agents testified was several feet away from the cocaine and the heat-sealer. A subsequent search of the Lincoln Town Car revealed a battery-operated secret compartment that had been installed in the back of the passenger seat. From this compartment, agents seized a scale, a clear plastic bag containing 96.9 grams of cocaine, and a loaded .22 caliber pistol.

Appellant, Garcia, Pujols, Pena, and Ozorio were all named co-defendants in an indictment dated December 14, 2005. All defendants were charged with Counts I and II. Count I alleged conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846, and was based on the cocaine seized from the basement of 234 Gallatin. Count II, also based on the cocaine from the basement, alleged possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B) and 18 U.S.C. § 2.³ Garcia and Gonzalez were the only two defendants charged in Counts IV and V. Count IV charged intent to distribute an unspecified quantity of cocaine (the amount in the vehicle's hidden compartment) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count V was possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). All of the other defendants pled guilty before trial. After defendant's four-day trial, the jury returned a guilty verdict on Counts I and II but acquitted him of the remaining charges. Gonzalez was sentenced to a 121-month term of imprisonment,⁴ to be followed by five years of supervised release. Gonzalez confines his appeal to four alleged errors in the district court's jury instructions.

II.

"The scope of our review is shaped by whether petitioner properly raised and preserved an objection to the instructions at trial." Jones v. United States, 527 U.S. 373, 387, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We review a properly preserved objection to "the form and wording" of an instruction given by the district court for abuse of discretion. United States v. McFarlane, 491 F.3d 53, 59 (1st Cir.2007). "While we would review de novo a claim that an instruction embodied an error of law," we also "review for abuse of discretion `whether the instructions adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.'" United States v. Silva, 554 F.3d 13, 21 (1st Cir.2009) (quoting United States v. Ranney, 298 F.3d 74, 79 (1st Cir.2002)). A trial court's refusal to give a particular instruction is reversible error only in the "relatively rare case" in which "the requested instruction was (1) substantively correct; (2) not substantially covered elsewhere in the charge; and (3) concerned a sufficiently important point that the failure to give it seriously impaired the defendant's ability to present his or her defense." United States v. Prigmore, 243 F.3d 1, 17 (1st Cir.2001).

If, however, a defendant fails to preserve his objection to jury instructions, we review only for plain error. United States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). Under this standard, a conviction may only be disturbed if appellant meets the "heavy burden" of proving "(1) that an error occurred; (2) that the error was clear or obvious; (3) that the error affected his substantial rights; and (4) that the error also seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id. (citations omitted); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This standard is so demanding that we have characterized it as "cold comfort to most defendants pursuing claims of instructional error," United States v. Medina-Martinez, 396 F.3d 1, 8 (1st Cir.2005), because, "[w]hile reversal of a conviction predicated on unpreserved jury error is theoretically possible, ... [it is] the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." United States v. Weston, 960 F.2d 212, 216 (1st Cir.1992).

Two general principles inform our analysis of each of appellant's claims. The Supreme Court has "repeatedly [] cautioned that instructions must be evaluated not in isolation but in the context of the entire charge." Jones, 527 U.S. at 391, 119 S.Ct. 2090. Therefore, we must examine the jury charge as a whole in order to determine whether the district judge clearly conveyed the relevant legal principles. In so doing, we must also be mindful that "the district court has considerable discretion in how it formulates, structures, and words its jury instructions." Prigmore, 243 F.3d at 17.

III.

We offer a brief summary of Gonzalez's defense at trial to help put his claims of error in the jury instructions in context. Gonzalez testified at the trial, as did his mother, sister, and a friend. Gonzalez said that on the day he was arrested, he was simply on his way to Rhode Island in order to visit his sister, who lived in Central Falls, Rhode Island. Pujols had arranged for Garcia, whom he knew to be driving to Rhode Island on that day, to take Gonzalez with him. Gonzalez claimed that he was unaware of the existence and contents of the hidden compartment in Garcia's vehicle, the Lincoln Town Car, or of the nature of the transaction...