United States v. Ana Gomez

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 31, 2019
• Docket: 17-4658
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4658

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANA MARITZA GOMEZ, a/k/a Ana Gomez,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:16-cr-00052-RWT-3)

Submitted: October 31, 2018 Decided: July 31, 2019

Before DIAZ and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Robert K. Hur, United States Attorney, Baltimore, Maryland, Kristi N. O’Malley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Ana Maritza Gomez was convicted after a jury trial of conspiracy to commit mail

and wire fraud, in violation of 18 U.S.C. § 1349 (2012), and mail fraud, in violation of

18 U.S.C. §§ 2, 1341 (2012). For the reasons that follow, we affirm.

Gomez’s convictions arose out of her participation in a mortgage refinance scam,

and specifically her efforts to recruit homeowners to participate in the scheme. At trial,

Gomez sought to question the Government’s case agent regarding a co-conspirator’s

statement made during a trial preparation session. That statement indicated that Gomez

did not know of the scheme’s fraudulent nature when she recruited homeowners to join,

and, Gomez believes, would have supported a good faith defense. Her co-conspirator

refused to testify at Gomez’s trial, however, and the district court denied Gomez’s efforts

to question the Government’s case agent, holding that the statements Gomez sought to

elicit constituted inadmissible hearsay.

On appeal, Gomez first argues that the district court should have admitted the

statement under the residual exception to the rule against hearsay. See Fed. R. Evid. 807.

We review this challenge to the district court’s evidentiary ruling for abuse of discretion.

United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). A district court has abused

its discretion “if its decision [was] guided by erroneous legal principles or rest[ed] upon a

clearly erroneous factual finding.” United States v. Johnson, 617 F.3d 286, 292 (4th Cir.

2010) (internal quotation marks omitted).

We discern no such abuse of discretion here. The residual exception is to “be used

very rarely, and only in exceptional circumstances.” United States v. Heyward, 729 F.2d

2 297, 299–300 (4th Cir. 1984) (internal quotation marks omitted). Of the factors

identified by Rule 807 for determining its application, see Fed. R. Evid. 807(a), the first –

whether the statement enjoys equivalent circumstantial guarantees of trustworthiness to

the enumerated exceptions to the hearsay rule – is the most important. United States v.

Dunford, 148 F.3d 385, 393 (4th Cir. 1998). Here, the statement Gomez sought to

introduce does not enjoy sufficient guarantees of trustworthiness, and so we find that the

district court did not abuse its discretion by declining to admit it under the residual

exception to the rule against hearsay. See also United States v. Devillasee, 199 F.3d 1328

(4th Cir. 1999) (unpublished table decision) (holding that the district court did not abuse

its discretion by declining to admit a witness interview summary prepared by a

government agent after the relevant witnesses exercised their Fifth Amendment rights).

Gomez also raises two other arguments for the statement’s admission that she did

not present to the district court. First, Gomez argues that her co-conspirator’s statement

was admissible as a statement “offered against an opposing party” that “was made by the

party’s agent or employee on a matter within the scope of that relationship and while it

existed.” Fed. R. Evid. 801(d)(2)(D). Second, Gomez maintains that the district court’s

hearsay ruling violated the Sixth Amendment by denying her the opportunity to present a

complete defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

Because Gomez failed to make these arguments before the district court, our

review is for plain error only. See United States v. Keita, 742 F.3d 184, 189 (4th Cir.

2014) (“[W]hen a defendant fails to make a specific and timely objection at trial, our

review is restricted to plain error.”). To prevail under the plain error standard, the

3 defendant must establish that “there was an error, the error was plain, and the error

affected the defendant’s substantial rights.” Id. (internal quotation marks and alterations

omitted). The correction of plain error lies within our discretion, which we may exercise

“if the error seriously affects the fairness, integrity or public reputation of judicial

proceedings, or the defendant is actually innocent.” Id. (internal quotation marks and

alterations omitted).

Under this demanding standard, we conclude that neither of Gomez’s arguments

establishes plain error. Rule 801(d)(2)(D) requires that Gomez show that, when her co-

conspirator made the disputed statement, he was an agent of the party-opponent – here,

the Government. See Womack v. Tierco Md. Inc., 38 F. App’x 850, 857 (4th Cir. 2002)

(citing Precision Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d

613, 618–20 (4th Cir. 1991)). Gomez has not made that showing, and so we find that the

district court did not plainly err by excluding her co-conspirator’s statement. See United

States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011) (“An error is plain when it is obvious

or clear under current law.” (internal quotation marks omitted)).

With respect to Gomez’s constitutional argument, the right under the Sixth

Amendment to present a full defense is not absolute, United States v. Prince-Oyibo, 320

F.3d 494, 501 (4th Cir. 2003), and “may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process,” Chambers, 410 U.S. at 295. Thus,

while courts may not apply the rules of evidence “mechanistically to defeat the ends of

justice,” id. at 302, a defendant “does not have an unfettered right” to present any and all

evidence, Taylor v. Illinois, 484 U.S. 400, 410 (1988). Here, Gomez has not shown that

4 the district court’s application of the hearsay rule plainly violated her constitutional

rights. See Brack, 651 F.3d at 392. *

Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED

* Gomez also argues that the district court erred by declining to admit the Government case agent’s notes or summaries from the trial preparation session in which Gomez’s co- conspirator gave the disputed statement. Those materials, Gomez contends, represent either admissible records of regularly conducted activity, see Fed. R. Evid. 803(6), or admissible public records, see Fed. R. Evid. 803(8). Gomez, however, never moved to admit any such notes or summaries. We therefore find Gomez’s argument unreviewable for purposes of this appeal. See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.1999) (“Generally, issues that were not raised in the district court will not be addressed on appeal.”).