United States v. Gonzalez-Hernandez

          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, ...