United States v. Gomez

• Decision Date: 28 July 2021
• Docket Number: No. 19-50313,19-50313
• Citation: 6 F.4th 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julio Cesar GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

6 F.4th 992

UNITED STATES of America, Plaintiff-Appellee,

v.Julio Cesar GOMEZ, Defendant-Appellant.

No. 19-50313

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2021 Pasadena, California

Filed July 28, 2021

Todd W. Burns (argued), Burns & Cohan, San Diego, California, for Defendant-Appellant.

Julius J. Nam (argued), Sonah Lee, and Sean D. Peterson, Assistant United States Attorneys; L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Riverside, California; for Plaintiff-Appellee.

Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and John E. Steele,^* District Judge.

Dissent by Judge Steele

IKUTA, Circuit Judge:

Julio Cesar Gomez appeals his convictions and subsequent sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm. We hold that the district court did not err by allowing the government to rebut Gomez's entrapment defense in its case in chief, or by allowing the government to introduce evidence of Gomez's affiliation with gangs to rebut that defense. Any error in allowing Gomez's parole officer to testify was harmless. Finally, the district court did not err by applying a two-level sentence enhancement for possession of a firearm during a drug-trafficking offense. We therefore affirm Gomez's conviction and sentence.

I

A

Gomez was indicted for various offenses relating to the sale of methamphetamine and firearms, and possessing firearms after being convicted of a felony. According to the evidence adduced at trial, on January 7, 2016, Gomez and his co-conspirator, Angel Carmona, met with two confidential informants, Lopez (CI-5) and Gabe (CI-489), in Cathedral City, California. The informants wore concealed recording devices during the meeting, and they recorded Gomez and Carmona agreeing to sell them methamphetamine the following week. At the meeting, Gomez stated that Steven Andrew Gonzalez, a co-defendant, might also be able to sell a firearm to Gabe.

A week later, on January 14, 2016, Gomez, Carmona, and Gonzalez met Lopez and Gabe at a residence in Indio, California. Law enforcement tracked the participants in the meeting using a GPS device installed in the informants’ vehicle, and the informants again secretly recorded the meeting. During the meeting, Lopez and Gabe purchased a quarter-pound of methamphetamine from Gomez, Carmona, and Gonzales. Lopez also purchased a firearm from Carmona.

After the January 14 meeting, Gomez and Gabe communicated through text messages to negotiate the sale of an additional half-pound of methamphetamine and firearms to Gabe. Gomez asked Gabe if he wanted a pound of methamphetamine rather than the half-pound they had previously discussed, but Gabe said that he did not have the money for the additional half-pound.

On February 17, 2016, Gomez met Gabe at a rest stop near Palm Springs, California. Gabe secretly recorded this meeting, and it was observed by law enforcement. Gomez and Gabe negotiated the quantity and price of the methamphetamine, as well as the price of the firearm. Gomez then sold Gabe a Smith & Wesson rifle and 222.9 grams (approximately a half-pound) of methamphetamine. In response to Gabe's question about how much a pound would cost, Gomez told him "three flat," meaning $3,000.

On June 16, 2016, officers from multiple law-enforcement agencies executed a search warrant at the residence of Gomez's girlfriend. The officers found Gomez in a bedroom and arrested him. The officers also found a loaded Smith & Wesson pistol, a box with 38 rounds of ammunition, and 3.23 grams of methamphetamine in the bedroom.

B

A federal grand jury indicted Gomez on seven criminal counts.¹ Count 1 alleged a conspiracy among Gomez, Gonzalez, and Carmona, among others, with intent to distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 846. This count identified overt acts occurring at the January 7 meeting between Gomez, Carmona, and the informants, and the January 14 sale of a firearm and methamphetamine. Count 2 alleged distribution of at least 108.1 grams of methamphetamine at the January 14 sale, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and 18 U.S.C. § 2(a). Count 3 alleged distribution of 219.3 grams of methamphetamine on February 17, 2016 in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Count 4 alleged that on or about February 17, 2016, Gomez knowingly possessed specified firearms and ammunition, after being convicted of one or more felonies (specifically, carjacking and possession of drugs where prisoners are kept) in violation of 18 U.S.C. § 922(g)(1).²

Carmona and Gonzalez entered guilty pleas and admitted to meeting with Gomez and the informants, and to selling methamphetamine and a firearm on January 14.

Gomez moved to dismiss the indictment on the ground of outrageous government conduct. In support, he submitted a declaration by his co-conspirator, Carmona, which alleged that Lopez gave Gomez the methamphetamine that Gomez later sold to Gabe on January 14th. In other words, Carmona alleged that one confidential informant gave Gomez the drugs that Gomez subsequently sold to the other confidential informant. The court denied this motion.

Before trial, the government filed a notice that it intended to call Manuel Ortiz, Gomez's parole officer, to testify in the government's case in chief, and it provided a list of topics on which Ortiz would likely testify. Over Gomez's objection, the district court ruled that Ortiz's testimony was admissible.

In August 2018, Gomez filed a motion in limine seeking to preclude the government from offering expert testimony from Chuck Cervello, an investigator from the Riverside County District Attorney's gang unit, regarding drug trafficking and gangs. In opposition to Gomez's motion, the government stated that it would seek to introduce this expert testimony so long as Gomez pursued an entrapment defense or called Carmona as a witness.³

The day before trial, in April 2019, the district court heard arguments on Gomez's motion in limine. The district court indicated that it would likely preclude expert testimony on gangs if Gomez was not going to raise an entrapment defense. Gomez's counsel said that he was "leaving open" whether to pursue an entrapment defense, depending on the evidence.⁴ The theory underlying Gomez's entrapment defense was similar to the theory underlying his motion to dismiss based on outrageous government conduct. According to Gomez, even though he had no prior inclination to be involved in drug trafficking, Lopez (the government's informant) facilitated Gomez's drug sale to Gabe (another government informant). Gomez's counsel further told the court that evidence supporting this theory could come in through Gomez's testimony, as well as from "some other evidence that may come out during the government's case in chief."

In response, the government argued that if Gomez intended to raise an entrapment defense, the government should have the opportunity to introduce evidence that would rebut such a defense in its case in chief. The court implicitly agreed, and the government asked Gomez's counsel to "declare itself by tomorrow morning," immediately before the trial began, whether Gomez intended to raise an entrapment defense. The district judge warned Gomez that invoking an entrapment defense would open him up "to an awful lot of negative evidence that could be avoided," including "the possibility of the government talking about the street gang as well as the connection to" the Mexican Mafia.

The next morning, Gomez's counsel informed the court that Gomez would "be pursuing an entrapment defense." After warning Gomez that this was a risky decision because it would allow the government to introduce predisposition evidence, including evidence of Gomez's gang affiliations, the court denied Gomez's motion in limine to prevent the government from introducing gang-affiliation evidence. Gomez did not give an opening statement before the government's case in chief.

C

At trial, Ryan Monis testified that he was a senior investigator assigned to the major organized crime division within the Riverside County District Attorney's office, and that he participated in a multi-agency task force investigating organized crime within Riverside County. Monis first described the nature and purpose of his task force, explaining that, "we investigate major organized crime," meaning "we focus on the worst of the worst" and the "individuals that we believe [are] the most dangerous." Monis also explained that "[g]angs and drugs kind of interact with each other," and "as a gang investigator" he was aware of "how the gang members on the streets and within the prison system operate in distributing and making profit from narcotics." Monis stated that he first learned about Gomez from Gomez's parole officer, Ortiz, who said that he was supervising "a high-level risk individual by the name of Julio Gomez." Monis then testified about the surveillance of the meetings on January 7, January 14, and February 17, 2016, as well as text messages between Gomez and the confidential informants. After describing his participation in the investigation of Gomez and his co-defendants, Monis stated that based on his information, "not only was [Gomez] a member of the North Side Indio [gang], but he was making a power play under the umbrella of the Mexican Mafia for control of the streets within the Coachella Valley." Monis stated that both the North Side Indio gang and the Mexican Mafia were involved in drug trafficking and handling firearms.

One of the government's confidential informants, Gabe, testified about his meetings with Gomez and other co-conspirators. The jury heard the secret recordings and saw the text messages. Gabe testified that Gomez was "apparently" going to take over Lopez's prior role collecting "ta...