United States District Court, D. Colorado
ORDER
Philip
A. Brimmer Chief Judge
This
matter comes before the Court on Defendant Omar Humberto
Gonzalez-Hernandez's Motion for New Trial [Docket No.
293], wherein defendant requests a post-verdict judgment of
acquittal under Fed. R. Crim. P. 29 or, in the alternative, a
new trial under Fed. R. Crim. P. 33.
I.
BACKGROUND
On July
10, 2018, defendant was indicted for conspiring to possess
with intent to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a) and 846. Docket No. 52. The second
superseding indictment, filed on September 13, 2018, alleges
in relevant part:
[f]rom on or about October 15, 2016, through on or about May
12, 2018, within the District of Colorado and elsewhere, the
defendants [Joanna Zarate-Suarez, Edwin Roman-Acevedo,
Christina Fitzgerald, Omar Humberto Gonzalez-Hernandez,
Jeremiah Serr] and others both known and unknown to the Grand
Jury, did knowingly and intentionally conspire to distribute
and to possess with intent to distribute a quantity of a
Controlled Substance, namely more than 500 grams of a mixture
and substance containing a detectable amount of
Methamphetamine and more than 50 grams of Methamphetamine,
and did so with interdependence.
Docket No. 101 at 1-2. Defendant was tried with one of his
alleged coconspirators, Jeremiah Serr, in February 2019.
Docket No. 260. On March 5, 2019, the jury found defendant
guilty of conspiring to distribute or to possess with the
intent to distribute 50 grams or more of actual
methamphetamine or 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine.
Docket No. 274 at 1-2. On April 2, 2019, defendant moved for
a post-verdict judgment of acquittal or, in the alternative,
for a new trial. Docket No. 293. The government filed a
response to the motion on April 16, 2019. Docket No. 301.
II.
ANALYSIS
A.
Motion for Judgment of Acquittal
The
Court turns first to defendant's motion for judgment of
acquittal. In considering a motion for judgment of acquittal
under Fed. R. Crim. P. 29, a court views the evidence
“in the light most favorable to the government, and
without weighing conflicting evidence or considering the
credibility of witnesses, determine[s] whether that evidence,
if believed, would establish each element of the
crime.” United States v. Fuller, 751 F.3d
1150, 1153 (10th Cir. 2014) (quotations omitted). A court may
enter a judgment of acquittal “only if the evidence
that defendant committed the crime is nonexistent or so
meager that no reasonable jury could find guilt beyond a
reasonable doubt.” Id. (quotations omitted).
Defendant
contends that the Court should grant his motion for judgment
of acquittal because the evidence presented at trial was
insufficient to support his conspiracy conviction. Defendant
advances two principal arguments in support of this
conclusion: (1) defendant's mere association with the
other alleged coconspirators and acquiescence in the object
of the conspiracy is not sufficient to support his
conviction; and (2) even if defendant was involved in the May
2018 drug transaction, that transaction was separate and
distinct from the conspiracies occurring in October 2016 and
November 2016. Docket No. 293 at 4-9. Both of these arguments
are unavailing.
Regarding
the first argument, defendant mischaracterizes the evidence
presented at trial. Contrary to defendant's assertion
that there was no evidence showing his direct involvement in
any aspect of the alleged drug conspiracy, see
Docket No. 293 at 5 (stating that Ms. Fitzgerald
“testified she had never had any direct dealings in the
drug trade with the defendant” and that there was no
evidence that defendant “did anything other than sit
silently by during the conversations regarding drugs”),
Ms. Fitzgerald testified to defendant's active
participation in at least two transactions related to the
conspiracy.[1] The first occurred in November 2016, when
S.M., the girlfriend of Ms. Fitzgerald's Virginia buyer,
flew to Colorado with Ms. Fitzgerald to pick up four pounds
of methamphetamine. Ms. Fitzgerald testified that defendant
and Ms. Zarate-Suarez picked her and S.M. up from the
airport, after which Ms. Fitzgerald, Ms. Zarate-Suarez, and
defendant formulated a plan to rob S.M. of the money that she
had brought with her to purchase the drugs. Although Ms.
Fitzgerald testified that defendant was “more so just
listening to the conversation” about the robbery and
“taking orders from [Ms. Zarate-Suarez], ” the
jury could have reasonably inferred that defendant was more
than a passive participant in the transaction, especially in
light of Ms. Fitzgerald's later testimony that defendant
drove to pick her up with his headlights off after she
committed the robbery.
According
to Ms. Fitzgerald's testimony, defendant was also
instrumental in the May 2018 drug transaction. Ms. Fitzgerald
testified that she returned to Denver on May 7, 2018 to
obtain six pounds of methamphetamine for the Virginia buyer.
She testified that she went out to lunch with defendant and
Ms. Zarate-Suarez on May 8, 2018, during which they discussed
the prices of the drugs and their plans for completing the
sale. Ms. Fitzgerald testified that defendant and Ms.
Zarate-Suarez conversed in Spanish, which Ms. Fitzgerald
could understand, during the lunch and that defendant
expressed opinions on how much to charge for the drugs,
whether to front the drugs to the Virginia buyer, and where
the sale would take place. Finally, Ms. Fitzgerald testified
that they scheduled the drug sale for the evening of May 9,
2018 because defendant was going to pick up the
methamphetamine after he got off work. Defendant then
accompanied Ms. Fitzgerald and Ms. Zarate-Suarez to
Burlington, Colorado, where they were planning to meet Ms.
Fitzgerald's Virginia buyer to complete the transaction.
To
convict defendant of the conspiracy charge, the government
was required to prove: “(1) an agreement by two or more
persons to violate the law; (2) knowledge of the objectives
of the conspiracy; (3) knowing and voluntary involvement in
the conspiracy; and (4) interdependence among
co-conspirators.” United States v. Foy, 641
F.3d 455, 465 (10th Cir. 2011). While defendant is correct
that “[o]ne does not become a member of a conspiracy
merely by associating with conspirators known to be involved
in crime, ” United States v. Hamilton, 587
F.3d 1199, 1207 (10th Cir. 2009) (internal quotation marks
and brackets omitted); see also Docket No. 293 at 7
(stating that “[a]ssociation with conspirators is
insufficient to sustain a conviction for conspiracy”),
“[e]ven a single overt act by [a] defendant can be
sufficient to connect him to the conspiracy if that act leads
to a reasonable inference of intent to participate in an
unlawful agreement or criminal enterprise.”
Hamilton, 587 F.3d at 1207 (internal quotation marks
omitted). Here, the evidence showed that defendant engaged in
multiple acts which, viewed in a light most favorable to the
government, support a reasonable inference that he knowingly
and voluntarily participated in a conspiracy to distribute
methamphetamine. The mere fact that defendant's
participation never included the actual sale of
methamphetamine is immaterial. See Hamilton, 587
F.3d at 1210 (stating that it was “irrelevant to the
question of [the defendant's] participation in [the] drug
organization that [his activities] did not directly pertain
to the distribution of drugs, but rather the collection on
drug debts”); United States v. Smith, 26 F.3d
739, 744 (7th Cir. 1994) (“Joining a distribution
conspiracy does not require an agreement to distribute
personally.”). The critical question is whether
defendant “shared a common purpose” with the
other alleged coconspirators and acted in furtherance of the
conspiracy's objectives. Hamilton, 587 F.3d at
1208-09 (stating that the requirement of interdependence is
satisfied if “the alleged coconspirators were united in
a common unlawful goal or purpose and if a defendant's
activities facilitated the endeavors of another alleged
coconspirator or facilitated the venture as a whole”
(emphasis and internal quotation marks omitted)). The Court
finds that the government's evidence was sufficient to
make this showing.
Defendant
also contends that the evidence established the existence of
multiple conspiracies rather than the single conspiracy
alleged in the indictment. To the extent defendant is
claiming that there was a variance between the conspiracy
charged in the indictment and the evidence adduced at trial,
this argument fails. The fact that Ms. Fitzgerald's
incarceration between December 2016 and January 2018
temporarily halted operations does not, without more,
establish that the May 2018 transaction was “separate
and distinct from the other two conspiracies occurring in
October 2016 and November 2016.” Docket No. 293 at 7;
see United States v. Alcorta, 853 F.3d 1123, 1139
(10th Cir. 2017) (stating that a coconspirator's arrest
does not automatically terminate a conspiracy or result in
the coconspirator's withdrawal from the conspiracy);
United States v. Caldwell, 589 F.3d 1323, 1330-31
(10th Cir. 2009) (stating that “a lapse in time does
not necessarily convert a single conspiracy into multiple
conspiracies, ” but that “time in combination
with other factors” may be sufficient (emphasis
added)); United States v. Williamson, ...