United States v. Gomez, 00-2249

Decision Date06 July 2001
Docket NumberNo. 00-2249,00-2249
Citation255 F.3d 31
CourtU.S. Court of Appeals — First Circuit


[Copyrighted Material Omitted] Mary A. Davis and Tisdale & Davis, P.A. on brief for appellant.

Donald K. Stern, United States Attorney, and Todd E. Newhouse, Assistant United States Attorney, on brief for appellee.

Before Selya, Lynch and Lipez, Circuit Judges.

Selya, Circuit Judge

Challenging the sufficiency of the evidence and alleging instructional error, defendant-appellant Elvin Gomez asks us to reverse (or, at least, set aside) his conviction for conspiracy to distribute crack cocaine (cocaine base). Should we refuse this entreaty, he seeks vacation of his sentence. Discerning no error, we affirm both his conviction and sentence.

I. Background

We recount the facts in the light most compatible with the government's theory of the case, consistent with record support. See United States v. Alicea, 205 F.3d 480, 482-83 (1st Cir.), cert. denied, 121 S. Ct. 256 (2000).

Agent Alex Baginski, a member of a Drug Enforcement Administration task force, working undercover, spearheaded a protracted investigation of a drug-trafficking operation in Holyoke, Massachusetts. The investigation neared its climax on May 3, 1999, when Baginski placed a telephone call to Jorge Arocho for the ostensible purpose of buying five ounces of crack cocaine.1 Baginski and Arocho agreed to the price, quantity, and other terms, and then agreed to consummate the transaction at the Brooks shopping plaza in Holyoke (a site that they had used on April 22 when concluding an earlier controlled drug buy). The site was within 1,000 feet of a public school.

After some delay (not consequential here), the meeting was rescheduled for May 5. That afternoon, officers watched as Arocho went to see the appellant, left, and returned to pick him up. The men proceeded together to the Brooks shopping plaza. There, Baginski met Arocho and the appellant in the parking lot and bought 140.6 grams of crack for $4,250. A surveillance team witnessed the transaction and recorded it on both videotape and audiotape.

On August 26, a federal grand jury returned a nine-count indictment against three defendants: the appellant, Arocho, and one Luis Feliciano. All the charges stemmed from Baginski's exploits in the April-May time frame. In due season, Arocho pled guilty and the government dropped the charges against Feliciano. Thus, the appellant stood trial alone. In the course of the trial, he raised a misidentification defense, resting primarily on the fact that Baginski originally had named Feliciano as Arocho's companion during the April 22 transaction.2 This, he argued, cast doubt on his involvement in the later (May 5) transaction and in the charged conspiracy.

The jury disagreed. It found the appellant guilty on three counts, viz.: (1) distributing crack cocaine on May 5 (or aiding and abetting the same), see 21 U.S.C. §§ 841(a)(1) & 18 U.S.C. §§ 2; (2) distributing crack cocaine on that date within 1,000 feet of a public school (or aiding and abetting the same), see 21 U.S.C. §§§§ 841(a)(1), 860 & 18 U.S.C. §§ 2; and (3) conspiring to distribute crack cocaine during the approximate period from April 22 to May 5, see 21 U.S.C. §§ 846 & 18 U.S.C. §§ 2. The court thereafter sentenced the appellant to a 133-month incarcerative term. This appeal followed.

II. Discussion

Before us, the appellant, represented on appeal by able counsel, makes three principal points. First, he challenges the district court's denial of his motion for judgment of acquittal on the conspiracy count. In that regard he contends, in effect, that Baginski's April 22 misidentification, and the lack of any other competent evidence that the appellant participated in the April 22 transaction, undermined the evidentiary predicate for the conspiracy charge. Second, the appellant alleges that the district court erred in instructing the jury. Finally, he invokes the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and asseverates that the lower court violated Apprendi principles in fixing the length of his sentence. We address these claims sequentially.


The Sufficiency Challenge.

The appellant, impliedly conceding the sufficiency of the evidence on the two May 5 drug-distribution counts, hoists the red flag of evidentiary insufficiency as to the conspiracy count. He raised this point below by a motion for judgment of acquittal, Fed. R. Crim. P. 29, but to no avail. We review the district court's denial of a motion for judgment of acquittal de novo. United States v. Staula, 80 F.3d 596, 604 (1st Cir. 1996). When, as now, a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be perused from the government's perspective, and the reviewing court - like the presider - must "decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational fact finder to conclude beyond a reasonable doubt that the defendant committed the charged crime." United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997). In that process, the court must "resolve all credibility disputes in the verdict's favor." United States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). In the end, the court "need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in 'a plausible rendition of the record.'" United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).

To prove conspiracy in a criminal case, the government must prove beyond a reasonable doubt that an agreement existed to commit the underlying substantive offense (here, the distribution of drugs), that the defendant knew of the agreement, and that he opted to join in it, intending to commit the substantive offense. See United States v. Barnes, 244 F.3d 172, 174 (1st Cir. 2001); United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir. 1993). The conspiratorial agreement need not be explicit and the proof thereof need not be direct. Sepulveda, 15 F.3d at 1173 (explaining that "the agreement may be express or tacit and may be proved by direct or circumstantial evidence"). In this case, the agreement to distribute drugs is patent the only real question is whether the government proved that the appellant was part and parcel of that agreement.

The appellant would have us answer this question in the negative. He contends that the evidence tying him to the April 22 transaction was unreliable, and in all events, the judge told the jury that Baginski's testimony about the April 22 transmission was to be considered only on the issue of identification. Without such a tie, the appellant says, the jury had nothing to go on beyond the evidence that he arguably participated in a single sale (occurring on May 5) - and that was simply not enough to ground a conspiracy conviction.

The record tells a different tale. There was a significant amount of evidence introduced at trial upon which the jury reasonably could have relied in convicting the appellant on the conspiracy count. In particular, the jury supportably could have found that the appellant accompanied Arocho on May 5. This, together with the evidence of conversations that took place prior to the May 5 transaction and the appellant's actions both on the day of the sale and at the scene (including his demonstrable eagerness to sell drugs to Baginski in future transactions), formed an adequate foundation on which to build the government's case. Against this evidentiary backdrop, proof of the appellant's direct complicity in the April 22 transaction was not a prerequisite to proof of his membership in the charged conspiracy.3

To complete the picture, we add two observations. First, we reject out of hand the appellant's suggestion that multiple transactions must be shown to forge a conviction for a drug-trafficking conspiracy. To the contrary, the government is not required to plead or prove even a single overt act to obtain a conspiracy conviction under 21 U.S.C. §§ 846. See United States v. Shabani, 513 U.S. 10, 13 (1994); United States v. Portela, 167 F.3d 687, 702 (1st Cir. 1999). It follows inexorably that the government need not prove the commission of multiple transactions in order to secure a conviction under that statute.

We likewise reject the appellant's claim that the jury's affirmative finding, recorded on the verdict slip (which mimicked the indictment and indicated that the conspiracy had begun "on or about April 22"), required an acquittal unless the government proved that the appellant participated in the April 22 transaction. "On or about" dates, when used in an indictment, are mere approximations. In the ordinary case, neither the prosecution nor the trier of facts is held to temporal precision in regard to such dates. See, e.g., United States v. Escobar-de Jes££s, 187 F.3d 148, 168 (1st Cir. 1999) (holding that evidence about an act occurring in late March supported proof of a conspiracy alleged to have begun "on or about" April), cert. denied, 528 U.S. 1176 (2000); Portela, 167 F.3d at 698 n.7 (noting that evidence of an act occurring in early April could suffice to prove a crime alleged to have occurred "on or about" March). Even assuming, for argument's sake, that the April 22 transaction was not part of the charged conspiracy,4 the record here is replete with evidence that the conspiracy was operative in early May. In our view, this suffices to ground a charge that the conspiracy began "on or about April 22."


Alleged Instructional Errors.


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