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Date: 10-04-2021
Case Style:
United States of America v. JULIO CESAR GOMEZ
Case Number: 19-50313
Judge: Sandra Segal Ikuta
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Julius J. Nam (argued), Sonah Lee, and Sean D. Peterson,
Assistant United States Attorneys; L. Ashley Aull, Chief,
Criminal Appeals Section; Nicola T. Hanna, United States
Attorney; United States Attorney’s Office
Defendant's Attorney:
Description:
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.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: