United States of America v. JULIO CESAR GOMEZ

San Francisco, CA - Criminal defense lawyer represented defendant with conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm charges.

Gomez was indicted for various offenses relating to the

sale of methamphetamine and firearms, and possessing

firearms after being convicted of a felony. According to the

evidence adduced at trial, on January 7, 2016, Gomez and his

co-conspirator, Angel Carmona, met with two confidential

informants, Lopez (CI-5) and Gabe (CI-489), in Cathedral

City, California. The informants wore concealed recording

devices during the meeting, and they recorded Gomez and

Carmona agreeing to sell them methamphetamine the

following week. At the meeting, Gomez stated that Steven

Andrew Gonzalez, a co-defendant, might also be able to sell

a firearm to Gabe.

UNITED STATES V. GOMEZ 5

A week later, on January 14, 2016, Gomez, Carmona, and

Gonzalez met Lopez and Gabe at a residence in Indio,

California. Law enforcement tracked the participants in the

meeting using a GPS device installed in the informants'

vehicle, and the informants again secretly recorded the

meeting. During the meeting, Lopez and Gabe purchased a

quarter-pound of methamphetamine from Gomez, Carmona,

and Gonzales. Lopez also purchased a firearm from

Carmona.

After the January 14 meeting, Gomez and Gabe

communicated through text messages to negotiate the sale of

an additional half-pound of methamphetamine and firearms

to Gabe. Gomez asked Gabe if he wanted a pound of

methamphetamine rather than the half-pound they had

previously discussed, but Gabe said that he did not have the

money for the additional half-pound.

On February 17, 2016, Gomez met Gabe at a rest stop

near Palm Springs, California. Gabe secretly recorded this

meeting, and it was observed by law enforcement. Gomez

and Gabe negotiated the quantity and price of the

methamphetamine, as well as the price of the firearm. Gomez

then sold Gabe a Smith & Wesson rifle and 222.9 grams

(approximately a half-pound) of methamphetamine. In

response to Gabe's question about how much a pound would

cost, Gomez told him "three flat,” meaning $3,000.

On June 16, 2016, officers from multiple lawenforcement agencies executed a search warrant at the

residence of Gomez's girlfriend. The officers found Gomez

in a bedroom and arrested him. The officers also found a

loaded Smith & Wesson pistol, a box with 38 rounds of

6 UNITED STATES V. GOMEZ

ammunition, and 3.23 grams of methamphetamine in the

bedroom.

B

A federal grand jury indicted Gomez on seven criminal

counts.1 Count 1 alleged a conspiracy among Gomez,

Gonzalez, and Carmona, among others, with intent to

distribute at least 50 grams of methamphetamine, in violation

of 21 U.S.C. § 846. This count identified overt acts occurring

at the January 7 meeting between Gomez, Carmona, and the

informants, and the January 14 sale of a firearm and

methamphetamine. Count 2 alleged distribution of at least

108.1 grams of methamphetamine at the January 14 sale, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and

18 U.S.C. § 2(a). Count 3 alleged distribution of

219.3 grams of methamphetamine on February 17, 2016 in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Count

4 alleged that on or about February 17, 2016, Gomez

knowingly possessed specified firearms and ammunition,

after being convicted of one or more felonies (specifically,

carjacking and possession of drugs where prisoners are kept)

in violation of 18 U.S.C. § 922(g)(1).2

Carmona and Gonzalez entered guilty pleas and admitted

to meeting with Gomez and the informants, and to selling

methamphetamine and a firearm on January 14.

1

The first indictment charged Gomez, Carmona, and Gonzalez with

five criminal counts. The operative first superseding indictment charged

only Gomez and Gonzalez, and included seven criminal counts.

2

At the close of trial, the district court dismissed Counts 5, 6, and 7

due to insufficient evidence.

UNITED STATES V. GOMEZ 7

Gomez moved to dismiss the indictment on the ground of

outrageous government conduct. In support, he submitted a

declaration by his co-conspirator, Carmona, which alleged

that Lopez gave Gomez the methamphetamine that Gomez

later sold to Gabe on January 14th. In other words, Carmona

alleged that one confidential informant gave Gomez the drugs

that Gomez subsequently sold to the other confidential

informant. The court denied this motion.

Before trial, the government filed a notice that it intended

to call Manuel Ortiz, Gomez's parole officer, to testify in the

government's case in chief, and it provided a list of topics on

which Ortiz would likely testify. Over Gomez's objection,

the district court ruled that Ortiz's testimony was admissible.

In August 2018, Gomez filed a motion in limine seeking

to preclude the government from offering expert testimony

from Chuck Cervello, an investigator from the Riverside

County District Attorney's gang unit, regarding drug

trafficking and gangs. In opposition to Gomez's motion, the

government stated that it would seek to introduce this expert

testimony so long as Gomez pursued an entrapment defense

or called Carmona as a witness.3

3 The government argued to the district court in its March 2019 trial

memorandum, that, "if the [district court did] not preclude an entrapment

defense pre-trial, then the government must be permitted to present

evidence regarding . . . the defendant's predisposition . . . in its case in

chief,” giving notice to the district court and Gomez. Therefore, it is

irrelevant that a year before Gomez's trial the government responded to

Gomez's co-defendant's motion in limine by stating it intended to offer

gang expert testimony during rebuttal only if the co-defendant were to

raise an entrapment defense. See Dissent at 33.

8 UNITED STATES V. GOMEZ

The day before trial, in April 2019, the district court heard

arguments on Gomez's motion in limine. The district court

indicated that it would likely preclude expert testimony on

gangs if Gomez was not going to raise an entrapment defense.

Gomez's counsel said that he was "leaving open” whether to

pursue an entrapment defense, depending on the evidence.4

The theory underlying Gomez's entrapment defense was

similar to the theory underlying his motion to dismiss based

on outrageous government conduct. According to Gomez,

even though he had no prior inclination to be involved in drug

trafficking, Lopez (the government's informant) facilitated

Gomez's drug sale to Gabe (another government informant).

Gomez's counsel further told the court that evidence

supporting this theory could come in through Gomez's

testimony, as well as from "some other evidence that may

come out during the government's case in chief.”

In response, the government argued that if Gomez

intended to raise an entrapment defense, the government

should have the opportunity to introduce evidence that would

rebut such a defense in its case in chief. The court implicitly

agreed, and the government asked Gomez's counsel to

"declare itself by tomorrow morning,” immediately before

the trial began, whether Gomez intended to raise an

entrapment defense. The district judge warned Gomez that

invoking an entrapment defense would open him up "to an

awful lot of negative evidence that could be avoided,”

including "the possibility of the government talking about the

street gang as well as the connection to” the Mexican Mafia.

4

Indeed, a few days before trial, the parties submitted joint proposed

jury instructions that included an entrapment instruction.

UNITED STATES V. GOMEZ 9

The next morning, Gomez's counsel informed the court

that Gomez would "be pursuing an entrapment defense.”

After warning Gomez that this was a risky decision because

it would allow the government to introduce predisposition

evidence, including evidence of Gomez's gang affiliations,

the court denied Gomez's motion in limine to prevent the

government from introducing gang-affiliation evidence.

Gomez did not give an opening statement before the

government's case in chief.

C

At trial, Ryan Monis testified that he was a senior

investigator assigned to the major organized crime division

within the Riverside County District Attorney's office, and

that he participated in a multi-agency task force investigating

organized crime within Riverside County. Monis first

described the nature and purpose of his task force, explaining

that, "we investigate major organized crime,” meaning "we

focus on the worst of the worst” and the "individuals that we

believe [are] the most dangerous.” Monis also explained that

"[g]angs and drugs kind of interact with each other,” and "as

a gang investigator” he was aware of "how the gang members

on the streets and within the prison system operate in

distributing and making profit from narcotics.” Monis stated

that he first learned about Gomez from Gomez's parole

officer, Ortiz, who said that he was supervising "a high-level

risk individual by the name of Julio Gomez.” Monis then

testified about the surveillance of the meetings on January 7,

January 14, and February 17, 2016, as well as text messages

between Gomez and the confidential informants. After

describing his participation in the investigation of Gomez and

his co-defendants, Monis stated that based on his information,

"not only was [Gomez] a member of the North Side Indio

10 UNITED STATES V. GOMEZ

[gang], but he was making a power play under the umbrella

of the Mexican Mafia for control of the streets within the

Coachella Valley.” Monis stated that both the North Side

Indio gang and the Mexican Mafia were involved in drug

trafficking and handling firearms.

One of the government's confidential informants, Gabe,

testified about his meetings with Gomez and other coconspirators. The jury heard the secret recordings and saw

the text messages. Gabe testified that Gomez was

"apparently” going to take over Lopez's prior role collecting

"taxes” for the Mexican Mafia.5

Paul Day, a special agent with the Bureau of Alcohol,

Tobacco, and Firearms testified regarding the search of the

residence on June 16, 2016. According to Day's testimony,

the search uncovered two rounds of ammunition, a firearm,

4.1 grams of methamphetamine, and "sheets of paper with

very, very small writing on them,” which he said were

commonly known as "kites,” often used in prison.

Ortiz identified himself as Gomez's parole officer and

stated that Gomez was placed on his caseload after his release

from state prison in November 2015 for carjacking with the

use of a firearm. Ortiz testified that Gomez was a

documented member of North Side Indio based on his tattoos

and his own admission. Ortiz stated that he discussed the

parole conditions (including requirements for drug testing and

GPS monitoring, and prohibitions on possession of firearms)

with Gomez. Ortiz testified that Gomez's GPS monitoring

5

In this context, the fees paid by retail drug sellers for the privilege

of selling drugs in an area controlled by the Mexican Mafia are called

"taxes,” and the person who collects the fees is called a "tax collector.”

UNITED STATES V. GOMEZ 11

device was at the location of the sale transaction that occurred

on February 17, and at the residence where he was arrested on

June 16. Ortiz also testified about his participation in

Gomez's arrest on June 16, and his observation of the

bedroom where Gomez was sleeping, where a firearm and

ammunition were found. After Ortiz testified, the

government stated that Gomez had stipulated that he had

previously been convicted of a felony, an element of Count

4 (charging Gomez with knowingly possessing specified

firearms and ammunition after being convicted of one or

more felonies).

Finally, Charles Cervello, a supervising investigator with

the Riverside County District Attorney's office, testified that

he supervised a team tasked with investigating gang narcotic

and other violent crimes. Cervello stated that he had

expertise on "how gang members interact with narcotics.”

Cervello testified about the drugs and loaded Smith &

Wesson pistol found in the June 16 search of the residence of

Gomez's girlfriend. Cervello inferred that the pistol belonged

to Gomez based on his "past history, the involvement in prior

narcotics sales,” and Cervello's opinion that the drugs found

in the residence were in a "distribution amount” and

possessed for sale. He explained that

gang members will often arm themselves for

various reasons, one of which is to protect

from being robbed, because that happens

within the criminal community. Another one

is to collect debts, meaning if I sold some

narcotics and you didn't pay me, I could use

the gun to get the money back. And then in

some cases also to use to assault law

enforcement.

12 UNITED STATES V. GOMEZ

The defense then called Gomez's co-conspirator,

Gonzalez, to support Gomez's entrapment defense. Gonzalez

testified that on January 13, he met with Gomez, Lopez, and

Carmona. Lopez brought a bag filled with brown paper bags

to the meeting, and then had a separate meeting with Gomez

and Carmona. On January 14, Gomez handed Gonzalez a

brown paper bag filled with methamphetamine. Gonzalez

testified that he did not know "where Gomez got the meth

from.” Later that day, Gonzalez gave the bag to Gomez, who

sold it to Gabe.

Neither the prosecution nor defense counsel discussed a

defense based on entrapment in closing arguments, and the

court did not give any instruction on that theory. The court

informed the jury that "as of February 17th, 2016, and June

16th, of 2016, the defendant had been convicted of a crime

punishable by imprisonment for a term exceeding one year.”

The court also instructed the jury that it "may not consider a

prior conviction as evidence of guilt of the crime for which

the defendant is now on trial,” and provided general limiting

instructions regarding expert and opinion testimony.

The jury returned guilty verdicts as to Counts 1 through

4. After applying a two-level sentence enhancement under

§ 2D1.1(b)(1) of the United States Sentencing Guidelines for

possession of a firearm during a drug-trafficking offense, the

district judge sentenced Gomez to 210 months in prison.

Gomez appealed.

The district court had jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291.

UNITED STATES V. GOMEZ 13

II

On appeal, Gomez argues that the district court erred by

allowing the government to offer evidence regarding

Gomez's gang affiliation in its case in chief in anticipation of

Gomez's entrapment defense, that the district court abused its

discretion by allowing Ortiz, Gomez's parole officer, to

testify at trial, and that the district court erred by applying a

two-level enhancement when calculating Gomez's sentence.6

We consider each of these issues in turn.

A

We first consider whether the government may present

evidence in its case in chief to rebut an anticipated

entrapment defense.

The Supreme Court has "firmly recognized the defense of

entrapment in the federal courts.” Sherman v. United States,

356 U.S. 369, 372 (1958). "Entrapment occurs only when the

criminal conduct was the product of the creative activity of

law-enforcement officials,” in other words, "when the

criminal design originates with the officials of the

government, and they implant in the mind of an innocent

person the disposition to commit the alleged offense and

induce its commission in order that they may prosecute.” Id.

(internal quotation marks omitted) (quoting Sorrells v. United

States, 287 U.S. 435, 442, 451 (1932)). By contrast, "the fact

that government agents merely afford opportunities or

facilities for the commission of that offense does not

6 We address and reject Gomez's remaining challenges in a

memorandum disposition filed concurrently with this opinion. ____ Fed.

App'x ____.

14 UNITED STATES V. GOMEZ

constitute entrapment.” Id. (citation and internal quotation

marks omitted).

In determining where to draw the line "between the trap

for the unwary innocent and the trap for the unwary

criminal,” id., we have held that the affirmative defense of

entrapment has two elements: "[1] government inducement

of the crime and [2] absence of predisposition on the part of

the defendant” to engage in the criminal conduct, United

States v. Gurolla, 333 F.3d 944, 951 (9th Cir. 2003). We

have defined "inducement” broadly as "any government

conduct creating a substantial risk that an otherwise

law-abiding citizen would commit an offense, including

persuasion, fraudulent representations, threats, coercive

tactics, harassment, promises of reward, or pleas based on

need, sympathy or friendship.” Id. at 954 (citation omitted).

In examining predisposition, we consider the following five

factors: "(1) the character or reputation of the defendant;

(2) whether the government made the initial suggestion of

criminal activity; (3) whether the defendant engaged in the

activity for profit; (4) whether the defendant showed any

reluctance; and (5) the nature of the government's

inducement.” Id. at 955. The government has the "burden of

proving beyond reasonable doubt that [the defendant] was

predisposed to break the law and hence was not entrapped.”

Jacobson v. United States, 503 U.S. 540, 542 (1992); see also

United States v. Thickstun, 110 F.3d 1394, 1396 (9th Cir.

1997).

A defendant need not inform the court of his intent to

invoke an entrapment defense. "A simple plea of not guilty

puts the prosecution to its proof as to all elements of the

crime charged, and raises the defense of entrapment.”

Mathews v. United States, 485 U.S. 58, 64–65 (1988)

UNITED STATES V. GOMEZ 15

(cleaned up).7 Nor does the defendant have to present

evidence to support the entrapment defense; rather, the

defendant may rely on evidence presented by the government.

In Sherman v. United States, for instance, the Supreme Court

held that "entrapment was established as a matter of law”

based solely on "the undisputed testimony of the

prosecution's witnesses.” 356 U.S. at 373. Similarly, we

have explained that "[t]he evidence supporting the

entrapment defense need not be presented by the defendant,”

and that "[e]ven when a defendant presents no evidence of

entrapment, it may nonetheless become an issue at his trial if

(1) the Government's case-in-chief suggests that the

defendant who was not predisposed was induced to commit

the crime charged, or (2) a defense or a government witness

gives evidence suggesting entrapment.” United States v.

Spentz, 653 F.3d 815, 818 n.2 (9th Cir. 2011) (cleaned up);

see also Gurolla, 333 F.3d at 956–57 (indicating that even

when a criminal defendant did not introduce "affirmative

evidence of entrapment,” the defendant "may nevertheless be

entitled to a jury instruction on that defense should the

government's evidence justify such an instruction”).

Because in our circuit a defendant can argue that he was

entrapped, and may be entitled to an entrapment instruction,

7 When a defendant notifies the court of his intent to invoke an

entrapment defense, "[a] district court may require a defendant to submit

a pretrial offer of proof on an entrapment defense.” Gurolla, 333 F.3d

at 951 n.8. If the defendant's offer of proof is "insufficient to establish all

the elements of the defense,” United States v. Arellano-Rivera, 244 F.3d

1119, 1125 (9th Cir. 2001), the "district court may preclude him from

presenting the defense at trial,” Gurolla, 333 F.3d at 951 n.8.

Nevertheless, at the close of trial, a defendant may raise the entrapment

defense if the evidence raised at trial supports it. Id. at 956–57.

16 UNITED STATES V. GOMEZ

based solely on evidence introduced by the government, we

do not have a per se rule precluding the government from

rebutting an anticipated entrapment defense in its case in

chief, because such a rule would be unfair. Said otherwise,

a blanket rule "that no evidence of a predisposition to commit

the crime and no proof of prior convictions may ever be

introduced by the government except in rebuttal to

affirmative evidence of entrapment adduced by defendant”

would "work grave prejudice to the government,” because it

would allow a defendant to invoke the defense without the

government having had an opportunity to rebut it.8 United

States v. Sherman, 240 F.2d 949, 952–53 (2d Cir. 1957),

rev'd on other grounds, 356 U.S. at 377–78; see also United

States v. Hicks, 635 F.3d 1063, 1072 (7th Cir. 2011)

(indicating that the government may preemptively rebut an

entrapment defense in its case in chief when the defendant

"clearly communicate[s] his intention to present an

entrapment defense”).9

8 The potential that a district court could address prejudice to the

government in a different way, by allowing the government to re-open its

case if the defendant raised the entrapment defense in closing argument,

see Dissent at 37–38, does not have a direct bearing on our conclusion that

a per se rule precluding the government from introducing rebuttal

evidence in its case in chief would be unfair.

9 Hicks does not support the dissent's argument that the government

may not introduce predisposition evidence to rebut an anticipated

entrapment defense in its case in chief. Dissent at 37. In Hicks, the

Seventh Circuit held that the district court erred in permitting the

government to introduce evidence of the defendant's prior drug

convictions. 635 F.3d at 1073. The court rejected the government's

argument that the evidence was admissible to rebut an entrapment defense,

because the defendant had not placed the issue of entrapment into

controversy. Id. at 1071–72. Although the defendant "discussed the

possibility of raising an entrapment defense prior to trial,” he "did not

UNITED STATES V. GOMEZ 17

Nevertheless, the government can introduce such

evidence in only limited circumstances. We agree with the

Second Circuit that evidence rebutting an anticipated

entrapment defense "is admissible as part of the prosecution's

case in chief” only "where it is clear . . . that the [entrapment]

defense will be invoked.”10

Sherman, 240 F.2d at 952–53. A

defendant clearly indicates that he will invoke an entrapment

defense when defense counsel "raise[s] the defense of

entrapment during his opening statement,” U.S. v. Parkin,

917 F.2d 313, 316 (7th Cir. 1990), when the entrapment

defense materializes "through a defendant's presentation of

its own witnesses or through cross-examination of the

government's witnesses,” United States v. Goodapple,

958 F.2d 1402, 1407 (7th Cir. 1992), or when the defendant

requests an entrapment instruction or tells the trial judge that

refer to his entrapment defense during an opening statement, which he

waived, nor during the government's case-in-chief,” and "it was not until

after the convictions came in at the close of the government's

case-in-chief,” that the defendant "definitively informed the court that he

would be raising an entrapment defense.” Id. at 1072. The Seventh

Circuit concluded that had the defendant "clearly communicated his

intention to present an entrapment defense before the convictions were

allowed into evidence, the government's contention that the convictions

were admissible to show predisposition would have more force,” but the

defendant "did not do so.” Id.

10 The Seventh Circuit has similarly suggested that the government

may preemptively rebut an entrapment defense in its case in chief when

the defendant "clearly communicate[s] his intention to present an

entrapment defense.” Hicks, 635 F.3d at 1072.

18 UNITED STATES V. GOMEZ

he intends to invoke an entrapment defense, Sherman,

240 F.2d at 953.11

Applying these principles here, we conclude that the

district court permissibly allowed the government to present

predisposition evidence in its case in chief, because it was

sufficiently clear that Gomez would invoke an entrapment

defense. Even before the hearing on the motion in limine,

Gomez requested an entrapment instruction. At the

subsequent hearing, despite the district judge's warnings that

doing so would open the door to the government's

predisposition evidence, including gang-affiliation evidence,

counsel for Gomez stated that he was reserving the right to

pursue an entrapment defense. He then sketched out his

theory of that defense, based on evidence that Lopez induced

Gomez to sell methamphetamine to Gabe. When asked by

the court to make his intention clear, Gomez's counsel stated

unequivocallythat Gomez would "be pursuing an entrapment

11 Contrary to this authority, the Eighth Circuit has held that it is

"error to permit the government in its case-in-chief to introduce evidence

of predisposition, which is properly admissible only as rebuttal of the

entrapment defense.” See United States v. McGuire, 808 F.2d 694, 696

(8th Cir. 1987). But in the Eighth Circuit, such a rule does not raise the

risk, present in our circuit, that a defendant will sandbag the government

by electing not to introduce any evidence of entrapment and then raising

the defense in closing argument based on the government's evidence.

That is because in the Eighth Circuit, "[t]he defendant carries the initial

burden of presenting some evidence that he or she was induced by

government agents to commit the offense.” United States v.

Abumayyaleh, 530 F.3d 641, 646 (8th Cir. 2008) (citation omitted).

Consistent with Mathews, we take a different approach to the defendant's

burden of raising an entrapment defense, and thus we decline to follow the

Eighth Circuit's per se rule precluding the government's rebuttal of an

anticipated entrapment defense.

UNITED STATES V. GOMEZ 19

defense.”12 Unlike in Hicks, where the defendant's "counsel

discussed the possibility of raising an entrapment defense

prior to trial,” but did not definitively inform the court that he

would be raising an entrapment defense until after the

government rested, 635 F.3d at 1072 (emphasis added), the

statement from Gomez's counsel was definitive: Gomez

intended to argue that he was entrapped. The government

thus proceeded with its case in chief on the belief that Gomez

would present an entrapment defense. Finally, during the

government's case, Gomez obtained Gonzalez's testimony to

support his theory that Lopez had induced Gomez to commit

a crime, thus confirming defense counsel's prior indication

that Gomez would be pursuing an entrapment defense. This

is more than sufficient to make clear that Gomez intended to

invoke an entrapment defense.13

12 On appeal, Gomez states, in a cursory footnote, that the district

court cannot require a defendant to elect before trial whether it will present

an entrapment defense. Because we review only issues that are argued

specifically and distinctly in a party's opening brief, see Miller v.

Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986), we decline to

address this issue here. Moreover, Gomez failed to raise this issue to the

district court, and because there is no binding authority holding that a

district court cannot require a defendant to make such an election, the

district court did not plainly err in requiring Gomez to inform the court of

his intent. See United States v. Depue, 912 F.3d 1227, 1234 (9th Cir.

2019).

13 There is no support for the dissent's suggestion that the defendant

must inform the jury—not just the district court—that the defendant

intends to raise an entrapment defense, Dissent at 37, before the court may

allow the government to introduce rebuttal evidence in its case-in-chief.

Cf. Hicks, 635 F.3d at 1072.

20 UNITED STATES V. GOMEZ

Because Gomez clearlyindicated that he would present an

entrapment defense at trial, the district court did not err by

allowing the government to preemptively rebut that defense.

B

Even though the district court did not abuse its discretion

by giving the government leeway to present evidence

rebutting Gomez's anticipated entrapment defense in its case

in chief, we must still consider whether the gang-affiliation

evidence that the government introduced was admissible.

Predisposition is a material issue in an entrapment case,

because "the prosecution must prove beyond reasonable

doubt that the defendant was disposed to commit the criminal

act prior to first being approached by Government agents.”

United States v. Mendoza-Prado, 314 F.3d 1099, 1103 (9th

Cir. 2002) (internal quotation marks omitted). Of the five

factors for proving predisposition, see supra Section II.A, the

most important are "the character and reputation of the

defendant,” and "whether the defendant showed any

reluctance.” United States v. Davis, 36 F.3d 1424, 1430 (9th

Cir. 1994); see also United States v. Thomas, 134 F.3d 975

(9th Cir. 1998). We have reasoned that "the well-settled rule

that character must be considered is tantamount to a holding

that it is an 'essential element' of the defense” of entrapment.

Thomas, 134 F.3d at 980; see also Mendoza-Prado, 314 F.3d

at 1103 ("The character of the defendant is one of the

elements—indeed, it is an essential element—to be

considered in determining predisposition.”). Therefore, when

a defendant raises an entrapment defense, character,

reputation, and lack of reluctance constitute "essential

elements” of the entrapment defense.

UNITED STATES V. GOMEZ 21

Under the Federal Rules of Evidence, when evidence of

a person's character is admissible, it may be proven "by

testimony about the person's reputation or by testimony in the

form of an opinion.” Fed. R. Evid. 405(a). When character

"is an essential element of a charge, claim, or defense,” it

may be proven by "relevant specific instances of that person's

conduct.” Fed. R. Evid. 405(b). Because character evidence

is both admissible and an essential element of an entrapment

defense, it may be proved under Rule 405 of the Federal

Rules of Evidence by reputation or opinion testimony, as well

as by specific instances of conduct.

The government may meet its burden of proof "through

inquiry into the defendant's record of conduct and reputation

that he was predisposed to commit the crime and was not an

otherwise innocent person who would not have committed the

crime but for the inducement.” Pulido v. United States,

425 F.2d 1391, 1393 (9th Cir. 1970). Reputation evidence

may include evidence of the defendant's "past and current

reputation in the community for involvement in the narcotics

trade,” including testimony from government agents and

confidential informants. Id. By the same token, it may also

include evidence of the defendant's reputation in the

community for involvement in gang activity. "Both the

Supreme Court and this court have ruled that evidence of

gang affiliation is admissible when it is relevant to a material

issue in the case,” United States v. Easter, 66 F.3d 1018, 1021

(9th Cir. 1995), and either the Supreme Court or our court has

previously admitted gang affiliation evidence when relevant

to identity, id.; bias, see United States v. Abel, 469 U.S. 45,

49 (1984); coercion, see United States v. Hankey, 203 F.3d

1160, 1172–73 (9th Cir. 2000); and motive, see United States

22 UNITED STATES V. GOMEZ

v. Santiago, 46 F.3d 885, 889 (9th Cir. 1995).14 Although the

government may also present evidence of specific instances

of a person's conduct, "[e]vidence of prior acts, whether

offered under Rule 404(b) or 405(b) by the prosecution or by

the defense, must be sufficiently related and proximate in

time to the crime charged to be relevant under Rule 403.”

United States v. Barry, 814 F.2d 1400, 1404 (9th Cir. 1987);

see also Mendoza-Prado, 314 F.3d at 1103 (holding that

"evidence of prior bad acts is not relevant to prove

predisposition unless the prior bad acts are similar to the

charged crime”).

The gang-affiliation evidence that Gomez challenges on

appeal focused on two issues.15 First, the government's

witnesses presented evidence that Gomez had a significant

role in the North Side Indio gang and the Mexican Mafia,

including making a "power play” for control of the streets and

taking over a role of collecting taxes. Evidence related to

14 Several of these cases dealt explicitly with impeachment evidence.

See, e.g., Abel, 469 U.S. at 49; Hankey, 203 F.3d at 1172–73.

15 Gomez challenged five items of gang-affiliation evidence:

(1) Gomez was a member of the Mexican Mafia and North Side Indio

gangs; (2) Gomez "was making a power play under the umbrella of the

Mexican Mafia for control ofthe streets within the Coachella Valley,” and

he was going to take over "collect[ing] taxes for the Mexican Mafia” from

Lopez; (3) Gomez was a "high risk individual”; (4) gang members like

Gomez arm themselves with guns to, among other things, "assault law

enforcement”; and (5) in his bedroom, Gomez had photographs of men

making gang signs, "kites” with surreptitious prison communications, and

a police report related to two Mexican Mafia associates. Gomez also

challenges Ortiz's testimony about Gomez's prior conviction for

carjacking with a firearm, but this testimony does not relate to gang

affiliation. As discussed below, we conclude that any error in admitting

that testimony was harmless.

UNITED STATES V. GOMEZ 23

gang paraphernalia at the residence where Gomez was

arrested was relevant to showing this affiliation. Second, the

witnesses testified that gangs were generally engaged in

trafficking in drugs and used firearms in their enterprises, for

purposes including protecting themselves, paying debts, and

assaulting law enforcement.

This evidence is all relevant to Gomez's character, see

Pulido, 425 F.2d at 1393, in that it shows Gomez's

predisposition to commit drug offenses and to possess and

use firearms. It also shows a lack of reluctance to engage in

criminal activities related to drug trafficking. In other words,

evidence that Gomez had the reputation of having a

leadership position in gangs that are heavily involved in drug

trafficking, and regularly use guns to facilitate such

trafficking, is relevant to rebut Gomez's theory that he had no

prior inclination to be involved in drug trafficking and to

possess a firearm until the government's confidential

informants induced him to do so.

The government did not introduce any evidence regarding

Gomez's involvement in specific prior gang-related activity.

See Santiago, 46 F.3d at 889 (holding that general evidence

that a defendant was a gang member does not constitute

evidence of prior bad acts, subject to Rule 404(b) of the

Federal Rules of Evidence). Therefore, we reject Gomez's

argument that under our decision in Mendoza-Prado, the

government's gang-affiliation evidence was inadmissible

because it was not sufficiently related to the charged crimes.

In Mendoza-Prado, we held that the district court erred by

admitting the transcript of a videotape in which the defendant

bragged about several uncharged crimes that he had

committed (namely, theft, extortion, and aiding a prison

escape), when the crimes bore "little relationship to the drug-

24 UNITED STATES V. GOMEZ

traffickingcrimes with which [the][d]efendant was charged.”

314 F.3d at 1104. We held that when a defendant raises an

entrapment defense, the government can introduce evidence

of specific instances of prior conduct under Rule 405(b) of

the Federal Rules of Evidence, but only when the prior bad

acts are similar to the charged crimes. Id. Mendoza-Prado's

ruling does not apply here, because the government's gangaffiliation witnesses did not identify any specific prior crimes

or bad acts of Gomez to show that Gomez had a propensity to

commit similar bad acts. Rather than rely on Rule 405(b), the

government's testimony was permissible under Rule 405(a),

as evidence about Gomez's reputation and character.

We also reject Gomez's argument that the gang-affiliation

evidence was unfairly prejudicial. We give great deference

to district courts when considering the admissibility of gangaffiliation evidence. "Assessing the probative value of

common membership in any particular group, and weighing

any factors counseling against admissibility is a matter first

for the district court's sound judgment under Rules 401 and

403 and ultimately, if the evidence is admitted, for the trier of

fact.” Abel, 469 U.S. at 54. If a defendant invokes an

entrapment defense, "he cannot complain of an appropriate

and searching inquiryinto his own conduct and predisposition

as bearing upon that issue.” Sorrells, 287 U.S. at 451. If, as

a consequence of the defendant's decision to invoke the

defense, "he suffers a disadvantage, he has brought it upon

himself by reason of the nature of the defense.” Id. at 452;

see also United States v. McGuire, 808 F.2d 694, 696 (8th

Cir. 1987) (emphasizing that it is "disingenuous and

inconsistent” for a defendant to indicate that he will pursue an

entrapment defense and then fault the government for

rebutting that defense). Here, the gang-affiliation evidence

was not admitted for an improper purpose, such as "to prove

UNITED STATES V. GOMEZ 25

a substantive element of a crime,” Hankey, 203 F.3d at 1172,

or to prove "intent or culpability,” Kennedy v. Lockyer,

379 F.3d 1041, 1055 (9th Cir. 2004). Nor was it introduced

to prove "guilt by association,” because it was not offered to

prove that Gomez was guilty of the charged crimes. See id.

at 1056 (internal quotation marks omitted); see also Santiago,

46 F.3d at 889 (holding that where gang-affiliation evidence

was not "the entire theme of the trial,” it did not "infect the

trial with the threat of guilt by association”) (cleaned up).

Giving "considerable deference” to the district court's

decision to allow the government to present gang-affiliation

evidence, we hold that the district court did not abuse its

discretion in admitting the evidence. United States v.

Cordoba, 194 F.3d 1053, 1063 (9th Cir. 1999) (citation

omitted).

III

We next consider whether, assuming without deciding

that the district court erred by allowing Gomez's parole

officer to testify at trial, any such error is grounds for

reversing Gomez's conviction.

Gomez argues that the admission of Ortiz's testimonywas

irrelevant and unfairly prejudicial. As with Gomez's

challenge to the admission of the gang-affiliation evidence,

the district court's determination as to the admissibility of this

evidence under Rule 403 of the Federal Rules of Evidence is

reviewed for an abuse of discretion. United States v.

Hinkson, 585 F.3d 1247, 1267 (9th Cir. 2009).

We weigh the probative value of a parole officer's

testimony against its prejudicial effect on a case-by-case

basis. See United States v. Bagley, 641 F.2d 1235, 1240 (9th

26 UNITED STATES V. GOMEZ

Cir. 1981) (holding that under the circumstances of that case,

the probation officer's testimonywas not prejudicial); United

States v. Butcher, 557 F.2d 666, 669–70 (9th Cir. 1977)

(balancing the probative value against the potential prejudice

of police and parole-officer testimony, and ultimately

determining that the testimony was admissible).16

Applying Rule 403, we have recognized that allowing a

parole or probation officer to testify may have a prejudicial

effect because it raises the inference that the defendant had a

prior criminal conviction. See United States v. Pavon,

561 F.2d 799, 802 (9th Cir. 1977) (holding that "the jury

could readily infer that [the defendant] had a prior criminal

conviction” from the fact that the defendant's probation

officer testified). Just as "[d]irect evidence of a defendant's

past crimes is not admissible” absent an exception, Pavon

reasoned that "evidence pointing strongly to an inference to

the same effect should also be excluded.” Id. Because we

could not identify any applicable past-crimes exception and

because the prosecution "could have presented the same

evidence without calling the parole officer as a witness,”

Pavon held that the probative value of the parole officer's

testimony was substantially outweighed by its prejudicial

effect, and therefore that the testimony should have been

excluded. See id. As suggested byPavon, however, a district

court may allow a probation officer to testify if the inference

raised by such testimony (i.e., that the defendant has a prior

16 Several of our sister circuits take a similar approach. See United

States v. Contreras, 536 F.3d 1167, 1171–72 (10th Cir. 2008) (rejecting

a per se rule); United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993)

(same); United States v. Garrison, 849 F.2d 103, 107 (4th Cir. 1988)

(same); United States v. Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984)

(same).

UNITED STATES V. GOMEZ 27

conviction) is permissible, such as when a defendant's past

crimes or character is at issue in the trial. See, e.g., Bagley,

641 F.2d at 1240.

Here, even assuming the district court erred in admitting

Ortiz's statement that Gomez had been convicted of a

carjacking offense, any such error was harmless. See Pavon,

561 F.2d at 803. We may raise harmless error sua sponte in

consideration of "(1) the length and complexity of the record,

(2) whether the harmlessness of an error is certain or

debatable, and (3) the futility and costliness of reversal and

further litigation.” United States v. Rodriguez, 880 F.3d

1151, 1164 (9th Cir. 2018) (cleaned up). The certainty of the

harmlessness is the most important factor. Id.

The evidence against Gomez was overwhelming. All of

the relevant transactions and meetings between Gomez and

one or more of the government's informants were secretly

recorded. The jury heard those recordings. The government

also conducted surveillance of the meetings and transactions.

Further, Gabe, who was present for the transactions and

involved in the sales of methamphetamine and firearms,

testified against Gomez. The jury also heard recordings of

conversations and saw text messages between Gomez and

Gabe. Finally, co-defendant Gonzalez testified that he

watched Gomez sell Gabe methamphetamine and a firearm.

Based on this evidence, "the harmlessness of any error is

clear beyond serious debate and further proceedings are

certain to replicate the original result.” United States v.

Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005).

Further, the record of Gomez's two-day trial is not especially

long or complex, and reversal would be both costly and futile.

Therefore, we conclude that any error related to Ortiz's

testimony was harmless.

28 UNITED STATES V. GOMEZ

IV

Finally, we consider whether the district court erred by

applying a two-level sentence enhancement under

§ 2D1.1(b)(1) of the United States Sentencing Guidelines.

Section 2D1.1 applies to Gomez's drug-trafficking

offenses, and § 2D1.1(b) provides the specific offense

characteristics for such offenses. Under the guidelines,

specific offense characteristics are determined on the basis of

all relevant conduct, broadly defined, that occurred in relation

to the offense of conviction. See U.S.S.G. § 1B1.3(a).17

17 Section 1B1.3(a)(1) provides that "specific offense characteristics

. . . shall be determined on the basis of the following”:

(1)(A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity

(a criminal plan, scheme, endeavor, or enterprise

undertaken by the defendant in concert with others,

whether or not charged as a conspiracy), all acts and

omissions of others that were—

(i) within the scope of the jointly undertaken

criminal activity,

(ii) in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that

criminal activity;

that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility

for that offense.

UNITED STATES V. GOMEZ 29

Under § 2D1.1(b)(1), "[i]f a dangerous weapon (including

a firearm) was possessed,” a two-level enhancement is

applicable. Id. § 2D1.1(b)(1). We have interpreted the

§ 2D1.1(b)(1) enhancement broadly. We have held that

possession of the firearm may be actual or constructive,

United States v. Lopez-Sandoval, 146 F.3d 712, 714–15 (9th

Cir. 1998), and that the firearms and drugs need not "be

found in proximity to each other,” United States v. Willard,

919 F.2d 606, 610 (9th Cir. 1990). Even when defendants

were arrested miles away from the firearms stored at their

homes or places of business, we held that the defendants

possessed weapons during the commission of the drugtrafficking offenses for purposes of this sentencing

enhancement. Lopez-Sandoval, 146 F.3d at 715; see also

United States v. Stewart, 926 F.2d 899, 901–02 (9th Cir.

1991).

Application Note 11 to § 2D1.1(b)(1) provides that "[t]he

enhancement should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected

with the offense.” U.S.S.G. § 2D1.1(b)(1) comment n.11(A).

"For example, the enhancement would not be applied if the

defendant, arrested at the defendant's residence, had an

unloaded hunting rifle in the closet.” Id. The application

note also states that this enhancement "reflects the increased

danger of violence when drug traffickers possess weapons.”

Id. We have also interpreted this application note broadly.

In determining whether the weapon "was connected with the

offense,” id., we have concluded that the "offense” in this

context refers to "the entire course of criminal conduct,” not

just the crime of conviction, Willard, 919 F.2d at 609–10.

This is consistent with the broad language of § 1B1.3, which

provides that specific offense characteristics such as

§ 2D1.1(b)(1) take into account all acts and omissions that

30 UNITED STATES V. GOMEZ

occurred "during the commission of the offense of

conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that

offense.” U.S.S.G. § 1B1.3(1)(B). We have also held that

the fact that a firearm was unloaded does not make it "clearly

improbable that the weapon was connected to” the drug

offense. Lopez-Sandoval, 146 F.3d at 716 (cleaned up).

Here, the probation office's Presentence Investigation

Report (PSR) recommended a sentence enhancement under

§ 2D1.1(b)(1) for two reasons. First, on January 14, 2016,

Carmona provided Gabe with a firearm "just minutes before

Gomez, Gonzalez, and Carmona sold [Gabe]

methamphetamine.” Second, on February 17, 2016, Gomez

sold Gabe the firearm and the methamphetamine at the same

time. In his objections to the PSR, Gomez argued that the

two-level enhancement was improper because there was no

evidence that he had been involved in Carmona's sale of a

firearm to Gabe at the January 14 transaction. Gomez did not

mention the sale of the firearm during the February 17

transaction. The district court adopted the PSR's

recommendation and applied the enhancement at sentencing.

On appeal, Gomez argues that it was "clearly improbable

that the weapon was connected with the offense,” U.S.S.G.

§ 2D1.1(b)(1) comment n.11(A), and therefore that the

enhancement was inappropriate. He reasons that if he were

using the firearms for the purpose of protecting or facilitating

the drug transaction, they would not be unloaded and would

not be sold to the drug buyer. In making this argument, he

relies on United States v. Lagasse, a First Circuit opinion

holding that a defendant's use of a knife to rob other

members of the conspiracy did not facilitate the offense

conduct, and so could not be the basis for a sentencing

UNITED STATES V. GOMEZ 31

enhancement. See 87 F.3d 18, 23 (1st Cir. 1996). Gomez

also argues that he could not be responsible for the January

14 incident, because Carmona, not Gomez, sold the firearm

to Gabe.

We review the district court's finding that the defendant

possessed a firearm during the commission of a drug offense

for clear error. See United States v. Garcia, 909 F.2d 1346,

1349 (9th Cir. 1990).18

We conclude that the district court's

§ 2D1.1(b)(1) enhancement was not clearly erroneous here.

Because an enhancement under § 2D1.1(b)(1) can be

appropriate "based on all of the offense conduct, not just the

crime of conviction,” United States v. Boykin, 785 F.3d 1352,

1364 (9th Cir. 2015), we may determine whether any of

Gomez's underlying offense conduct was sufficient to justify

the enhancement.19

During the February 17 transaction, Gomez possessed a

firearm to sell to Gabe, and the weapon was present during

the drug-trafficking offense. Therefore, the enhancement was

applicable "unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1(b)(1)

18 Because Gomez did not mention the February 17 transaction in his

objections to the PSR, the government argues that we should review the

district court's application of the § 2D1.1(b)(1) enhancement for plain

error. Because we conclude that there is no error at all, let alone plain

error, we do not reach this issue.

19 Therefore, we do not need to reach the question whether the

enhancement was appropriately tied to the January 14 transaction. Even

if we reached this issue, however, we would conclude that it would also

be appropriate to impose a sentencing enhancement on Gomez for the sale

of the firearm during the January 14 transaction, due to Gomez's

involvement in a jointly undertaken criminal activity. See U.S.S.G.

§ 1B1.3.

32 UNITED STATES V. GOMEZ

comment n.11(A). Unlike the example of a hunting rifle

locked in a closet, id., the firearm here was connected to the

offense, because the sale of the firearm and

methamphetamine were bundled together. Under our case

law, the government does not have to establish that the

defendant possessed the firearm for the purpose of protecting

or facilitating the drug transaction. Indeed, the firearms need

not be "involved in the crime of conviction.” Willard,

919 F.2d at 609; cf. Smith v. United States, 508 U.S. 223, 235

(1993) (holding that a person who sells a firearm "uses” it

within the meaning of 18 U.S.C. § 924(d)(1) "even though

those actions do not involve using the firearm as a weapon”).

Nor is it relevant that the firearms were unloaded.

Lopez-Sandoval, 146 F.3d at 714–15. Lagasse is not to the

contrary; rather, it held that possession of a firearm that was

adverse to the offense of conviction was not connected to that

offense. 87 F.3d at 23. Therefore, the district court did not

err in applying the two-level § 2D1.1(b) enhancement to

Gomez's sentence.

AFFIRMED