United States v. Gomez

• Decision Date: 14 June 2013
• Docket Number: No. 12–1104.,12–1104.
• Citation: 712 F.3d 1146
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nicolas GOMEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 1146

UNITED STATES of America, Plaintiff–Appellee,

v.Nicolas GOMEZ, Defendant–Appellant.

No. 12–1104.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 16, 2013.

Decided April 5, 2013.

Rehearing En Banc Granted, Opinion Vacated June 14, 2013.

Angel M. Krull (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Michael J. Petro, Attorney, Angela M. Rentz (argued), Chicago, IL, for Defendant–Appellant.

Before BAUER and HAMILTON, Circuit Judges, and MILLER, District Judge.^*

MILLER, District Judge.

A jury found Nicolas Gomez guilty of four drug-related crimes following a five-day jury trial. Mr. Gomez was sentenced to four concurrent 84–month terms. Mr. Gomez contends that the district court erred in admitting evidence of his possession of cocaine a few weeks after the charged crimes, and that the district judge didn't specify his perjurious statements when increasing his sentencing range for obstruction of justice. We affirm the conviction and sentence. While the admission of the uncharged cocaine possession was questionable, it was not an abuse of discretion. We also hold that given the context of the statements, the district court made a sufficient record.

I

This investigation was based largely upon interception of telephone communications between Roberto Romero and a male referred to as “Guero.” The government believes Guero was Mr. Gomez. Two dates are important for today's discussion; additional facts are set forth as needed. On September 3, 2010, two agents stopped and spoke with Mr. Gomez immediately after seeing Mr. Gomez speaking with Roberto Romero. Mr. Romero was thought to be Mr. Gomez's supplier and would become Mr. Gomez's co-defendant. Later in the day, agents searched a car and found a quarter kilogram of cocaine. The car Mr. Romero had driven from Chicago to Milwaukee was eventually searched by agents.

Twenty-six days later, agents arrested Mr. Gomez at his home and searched the residence pursuant to a search warrant. The agents found a personal use quantity of cocaine in the pocket of a pair of pants found in a bedroom connected with Mr. Gomez. The district court denied Mr. Gomez's pretrial motion to suppress evidence of the search and its fruits. The admission of that cocaine into evidence at trial gives rise to the first issue presented in this appeal.

The government moved for a pretrial determination of the admissibility of the September 29 cocaine evidence. The government conceded that the admissibility of the cocaine depended on what Mr. Gomez argued at trial, but the evidence would be admissible if Mr. Gomez argued that he lacked knowledge, he wasn't the person involved in the conspiracy, or that this was all just an accident or mistake. Mr. Gomez argued that the evidence at issue wouldn't be relevant under any circumstances because he was charged with conspiracy rather than possession, and the September 29 events happened after the charged conspiracy. The court denied the government's request, explaining that while the sequence of events didn't defeat admissibility, additional information was needed to connect Mr. Gomez to the cocaine found on the day of the arrest.

The government renewed its motion to admit the cocaine evidence under Rule 404(b) at trial. The government argued that Mr. Gomez had “opened the door through [his] opening statement and cross-examinations of two witnesses regarding [his] not possessing or touching cocaine, implying that [he] was just an innocent bystander at the wrong place at the wrong time.” Gov't Br., at 14. In support of its position, the government noted that: Mr. Gomez's counsel had established, through the agent who conducted a patdown of Mr. Gomez on the street some weeks prior to his arrest, that the agent hadn't found cocaine, cocaine paraphernalia, or large amounts of cash on Mr. Gomez; Mr. Gomez's counsel had established, through cross-examination of an agent who conducted surveillance of Mr. Gomez, that the agent saw no hand-to-hand transactions or Mr. Gomez with cocaine; and that Mr. Gomez's counsel told the jury in opening statement that it wouldn't see any evidence about Mr. Gomez having cocaine on him during the period of the charged conspiracy. The government told the court it wanted to respond to the implication that Mr. Gomez was “basically the unluckiest man in the world,” in the wrong place at the wrong time. Mr. Gomez objected to the government's renewed request, arguing that no door had been opened and nothing had happened since the pretrial denial of the government's request to make the evidence admissible.

The court ruled that while Mr. Gomez might have opened the door to evidence correcting a misimpression, too little evidence connected Mr. Gomez to the cocaine found on the day of the arrest:

The implication of [defense counsel's] questioning was not simply, [Mr. Gomez] does not have drugs on him now. The implication of [defense counsel's] questioning was, [Mr. Gomez] is not at all associated with drugs. And I think that inference is what [defense counsel] wanted to get to the jury. [Mr. Gomez] is an individual who is pure as the new fallen snow. And they are putting all of the things on him, for whatever reason, I don't know. But that was the implication.

And the court is not ruling that they can do that because the court has not heard the evidence as to what they would expect to be able to—how they are going to establish that when [Mr. Gomez] was in the room, whether or not they were his pants, etc. etc. etc.

So we will do that outside the presence of the jury. But I am just saying that there have been questions that you have asked, which were proper questions. But they open the opportunity, maybe, for some response to [those] issues.

Tr. at 379.

Several witnesses later, the government renewed its request to admit the Rule 404(b) evidence, arguing that it had established that the address where the cocaine was found on the day of the arrest was Mr. Gomez's residence and the bedroom at issue was Mr. Gomez's bedroom. Mr. Gomezagain objected, first, because the evidence was insufficient to support a finding that he committed a similar act; second, because numerous people lived in that house so the bedroom could have belonged to anyone; and, third, because the bedroom contained “quite a bit of clutter,” it wasn't clear where the jeans were found or if he owned them. In reply, the government specified that the later cocaine evidence was offered on the issues of identity and absence of mistake, rather than as propensity evidence. Mr. Gomez's counsel rejoined that it was propensity evidence and that there was too little evidence to support a finding that Mr. Gomez committed the subsequent act.

This time, the court agreed with the government and admitted the evidence on the issues of identity, knowledge, and absence of mistake or accident. The jury heard the evidence and was told in the final instructions that it could only consider the September 29 evidence “on the question of identity, absence of mistake or accident, and knowledge.”

A

Mr. Gomez claims the admission of evidence of his subsequent possession of a user amount of cocaine as Rule 404(b) evidence was an abuse of discretion as the admission of that evidence fails each prong of the Rule 404(b) test.

“We review a district court's admission of evidence for an abuse of discretion [and] will reverse an evidentiary ruling only when the record contains no evidence on which the district court rationally could have based its ruling.” United States v. Gorman, 613 F.3d 711, 717 (7th Cir.2010). “We give special deference to the trial judge regarding these matters because of his first-hand exposure to witnesses, familiarity with the case, and ability to gauge the impact of the evidence in the context of the entire proceeding. Only where no reasonable person could take the view adopted by the trial court will we reverse an evidentiary ruling.” United States v. Vargas, 552 F.3d 550, 554 (7th Cir.2008) (citation omitted); accord United States v. Santiago, 643 F.3d 1007, 1011 (7th Cir.2011).

When Mr. Gomez was tried in September 2011, Federal Rule of Evidence 404(b) provided that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” For the evidence to be admissible, the non-propensity probative value of the evidence must be sufficient so as not to be substantially outweighed by the risk that the jury will use the evidence as proof of an improper character inference. Fed.R.Evid. 403; United States v. Ciesiolka, 614 F.3d 347, 355–56 (7th Cir.2010).

A court deciding whether to admit evidence under Rule 404(b) considers whether “(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, as required by Rule 403.” United States v. Albiola, 624 F.3d 431, 439 (7th Cir.2010); accord United States v. Boling, 648 F.3d 474, 479 (7th Cir.2011).

Mr. Gomez contends that none of these factors supported admission of the September 29 evidence.

B

The first consideration is whether the evidence was directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged. Mr. Gomez points to the district court's infelicitous comment when discussing the government's first in-trial offer of the September 29 evidence:

The implication of ...