United States v. Gonzalez, No. 08-10327 (11th Cir. 4/15/2009), 08-10327.
| Decision Date | 15 April 2009 |
| Docket Number | No. 08-12010.,No. 08-10327.,08-10327.,08-12010. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE GONZALEZ, STEVEN HARTSFIELD, Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EARNEST PICKETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Southern District of Florida; D. C. Docket No. 07-20584-CR-UU.
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
DO NOT PUBLISH
On July 26, 2007, a Southern District of Florida grand jury returned a six-count indictment against Jose Gonzalez, Steven Hartsfield, Earnest Pickett, Juan Alameda, and Gilbert Guerrero charging them as follows. Count 1 alleged that the defendants conspired to possess with intent to distribute a mixture and substance containing five kilograms or more of cocaine, in violation of 21 U.S.C. § 846(b)(1)(A). Count 2 charged the defendants with attempting to possess the mixture and substance referred to in Count 1, in violation of 21 U.S.C. § 841(a)(1). Count 3 alleged that the defendants conspired to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). Count 4 alleged that they attempted to commit the robbery referred to in Count 3, in violation of 18 U.S.C. § 1951(a). Count 5 charged the defendants with carrying a firearm in relation to the drug trafficking crimes alleged in Counts 1 and 2, in violation of 18 U.S.C. § 924(c)(1)(A). Count 6 charged Gonzalez and Hartsfield with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
These charges grew out of a sting operation set up by a Miami-Dade Police Department Street Terror Offender Program, a task force of federal and state law enforcement agencies. In March 2007, a confidential informant, Modesto Garcia, informed two Miami-Dade detectives that (defendant) Alameda and a group of confederates were interested in committing a robbery of a drug stash house. One of the detectives, acting under cover, posed as a drug dealer, whose job was to secure cocaine flown in from Colombia and to deliver it to his employers in Miami. He told Alameda that he wanted to rob his employers because they owed him money. Alameda agreed to assist him in carrying out the robbery.
By July 5, 2007, preparations for a robbery were in place. The undercover detective told Alameda that a delivery of cocaine would be arriving from Colombia within a week. On July 12, he called Alameda and informed him that the cocaine had arrived and that it would be delivered to the stash house, a local warehouse, the next day. On July 13, the defendants then gathered in Miami and met Garcia at a Home Depot parking lot. Garcia had driven there in his Ford Expedition, which was equipped with video surveillance camera. While under the task force's surveillance, Alameda placed an AK-47 assault rifle in Garcia's Expedition, and Gonzalez, armed with a handgun, Hartsfield, and Guerrero got into the Expedition with Garcia. Alameda and Pickett went to Alameda's car, and the two vehicles drove to the warehouse. They were arrested on arrival.
All five defendants entered pleas of not guilty. On September 21, 2007, Guerrero, and Alameda pled guilty to Counts 1 through 5 of the indictment. Gonzalez, Hartsfield, and Pickett elected to stand trial. Guerrero, who was cooperating with the Government, would testify against them. The trial began on September 25, 2007. Five days later, on October 1, the jury returned their verdicts, convicting Gonzalez on all counts,1 Hartsfield guilty on Counts 3 through 6, and Pickett on Counts 3 and 4. Following the imposition of sentence, Gonzalez, Hartsfield, and Pickett appealed. Pickett's appeal having been filed separately has been consolidated with Gonzalez and Hartsfield's. All three challenge their convictions; Hartsfield also challenges his sentences.2
We begin our consideration of these appeals by delineating the elements of the offenses alleged in the several counts of the indictment and what the government had to do to prove them. We first take up § 1951(a), the Hobbs Act, then §§ 924(c)(1) and 922(g)(1).
"The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies to commit robbery or extortion, that in any way or degree obstruct, delay, or affect commerce or the movement of any article or commodity in commerce." United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (internal quotation marks and punctuation omitted). Section 1951(a) of Title 18 provides that:
[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a).
To prove a Hobbs Act conspiracy (Count 3), the government had to prove that: "(1) two or more persons agreed to commit a robbery encompassed within the Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal." United States v. To, 144 F.3d 737, 747-48 (11th Cir. 1998). "Although mere presence is inadequate to establish guilt . . . it is material, highly probative, and not to be discounted." United States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (internal quotation marks and citation omitted).
"Because the Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt and conspiracy, the interstate nexus required to prove a Hobbs Act conspiracy may be established upon evidence that had the conspiratorial objective been accomplished, interstate commerce would have been affected." United States v. Orisnord, 483 F.3d 1169, 1177 (11th Cir.), cert. denied, 128 S.Ct. 673 (2007) (emphasis added). The type of evidence required for the government to satisfy its burden of proof concerning the interstate commerce nexus under the Hobbs Act differs depending on whether the defendant is charged with inchoate offenses of conspiracy and attempt, on the one hand, or a substantive offense, on the other. United States v. Le, 256 F.3d 1229, 1232 (11th Cir. 2001). Where a defendant is charged with conspiracy (Count 3) or attempt (Count 4) to violate the Hobbs Act, "the interstate nexus may be demonstrated by evidence of potential impact on interstate commerce or by evidence of actual, de minimis impact." Id. (citations omitted). In the case of a substantive Hobbs Act offense, the "impact on commerce does not need to be substantial; all that is required is minimal impact." Id. Moreover, that the intended victims and narcotics were fictional in a sting operation is irrelevant to establishing the interstate commerce jurisdictional requirement for a conviction under the Hobbs Act. United States v. Taylor, 480 F.3d 1025, 1027 (11th Cir.), cert. denied, 128 S.Ct. 130 (2007).
To establish a violation of 18 U.S.C. § 924(c)(1) (Count 5), the government had to demonstrate beyond a reasonable doubt that the defendant (1) knowingly (2) possessed a firearm (3) during and in relation to a drug trafficking crime or a crime of violence. United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008); 18 U.S.C. § 924(c)(1)(A). A "crime of violence" means an offense that is a felony and either (1) has as an element the use or attempted use of physical force against a person or (2) by its nature involves a substantial risk that physical force against a person may be used in the course of committing the offense. 18 U.S.C. §924(c)(1)(D)(3). An attempted robbery constitutes a crime of violence under § 924(c)(1)(A). See United States v. Hooper, 270 Fed. Appx. 929, 930 (11th Cir.) cert. denied, 129 S.Ct. 429 (2008) (unpublished) (). Further, the government is not required to show to a "scientific certainty" that a defendant was carrying a gun, nor is it required to introduce the gun into evidence. United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002).
To convict a defendant of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) (Count 6), the government had to prove beyond a reasonable doubt that (1) the defendant was a convicted felon, (2) the defendant knowingly possessed a firearm, and (3) the firearm was in or affected interstate commerce. United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).
In this case, the government could prove, through direct or circumstantial evidence, the first element under both §§ 922(g)(1) and 924(c) — knowing possession of a firearm — either actual or constructive possession. United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006). "Constructive possession exists when the defendant exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control." Id. Mere presence near contraband or awareness of its location, is insufficient to establish possession. United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992). We have found sufficient evidence of constructive possession of a gun that was found in the glove compartment of a car in which the defendant was a backseat passenger, as the jury could "find that the firearm was being carried by [the defendant] in the vehicle." United States v. Farris, 77 F.3d 391, 395-96 (11th Cir. 1996).
Pickett argues that the district court erred by denying his motion for judgment of acquittal because the evidence was insufficient for a jury to conclude that he conspired or attempted to commit a Hobbs Act robbery. Hartsfield argues, independently, that there was insufficient evidence for a reasonable juror to find that he conspired or attempted to commit a Hobbs Act robbery, possessed...
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