United States v. Gómez-Encarnación

885 F.3d 52
CourtCourt of Appeals for the First Circuit
DecidedMarch 20, 2018
DocketNo. 15-2345
StatusPublished
Cited by4 cases

This text of 885 F.3d 52 (United States v. Gómez-Encarnación) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gómez-Encarnación, 885 F.3d 52 (1st Cir. 2018).

Opinion

KAYATTA, Circuit Judge.

*54In 2014, Defendant Santos Gómez-Encarnación was charged with both money laundering and conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956. Tried, convicted on both counts, and sentenced to fifty-one months in prison, he now appeals both his conviction and his sentence. For the following reasons, we affirm.

I.

In 2014, the Drug Enforcement Administration ("DEA") began an investigation into potential bulk cash smuggling by Juan Polanco-Ventura ("Polanco"). On April 28, 2014, the DEA intercepted a call between Polanco and a co-conspirator, Daniel Pilier, during which Polanco told Pilier that he was going to Pilier's friend's house and Pilier told Polanco to pick up the money. Shortly thereafter, Polanco called the defendant, Santos Gómez-Encarnación, and asked if he could come by. An agent observed Polanco go to Gómez-Encarnación's residence, where Polanco received something through his car window from a person later identified by the agent as co-defendant Pedro Trinidad-Marine ("Trinidad"). Contemporaneously, Polanco called Pilier and informed him that he had picked up the money and would wire him some. Polanco was seen shortly thereafter near a money transfer business, holding a piece of paper similar to a receipt.

The next month, agents intercepted several calls between Polanco and an associate outside the United States during which the callers discussed the smuggling of currency to fund drug shipments. The month after that, agents began surveilling Gómez-Encarnación's residence, and on June 12, observed Trinidad pick up Gómez-Encarnación at his home. On June 26, after receiving intelligence that co-defendant Henry Carmona Reyes ("Carmona") was coming to San Juan, agents established surveillance on Carmona and observed him and Trinidad drive (with a few stops) to Gómez-Encarnación's residence, where agents observed the three men talking.

Agents also intercepted several phone calls between Pilier and Gómez-Encarnación. On one call, Pilier told Gómez-Encarnación that he needed "pigeon peas," which, an agent testified, was a code phrase referring to drugs. Subsequent calls used additional coded language referring to drug pricing. The conversations also revealed that Gómez-Encarnación had changed phone numbers, which, an agent would later testify at trial, is typical in a drug trafficking operation.

On August 28, DEA agents arrested Gómez-Encarnación at his residence. Gómez-Encarnación told agents about some currency in a dresser, but denied the presence of firearms or drugs. A search of the residence *55recovered marijuana, ketamine, approximately $65,000 cash, and weapons including a Glock 21 pistol that had been modified so as to be capable of firing in fully automatic mode.

In October 2014, Gómez-Encarnación was indicted for conspiring to conduct financial transactions involving the proceeds of specified unlawful activity, described in the indictment as "the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in controlled substances." The indictment also charged the underlying substantive crime of money laundering.

Gómez-Encarnación elected to go to trial. At trial, agents testified as to the facts described above and the wiretaps were introduced as evidence. Crucially, Polanco testified against Gómez-Encarnación, stating that Polanco had made arrangements to pick up $40,000 from Gómez-Encarnación, that Gómez-Encarnación "gave" it to him outside Gómez-Encarnación's residence, and that the money was derived from drug proceeds. Gómez-Encarnación was convicted by a jury of both money laundering and conspiracy to launder money. The district court denied his motion for acquittal under Federal Rule of Criminal Procedure 29.

At sentencing, the court imposed a six-level enhancement under U.S.S.G. § 2S1.1(b)(1) after finding that Gómez-Encarnación knew that the crime involved drug trafficking proceeds. In addition, the district court denied Gómez-Encarnación's request for a reduction under U.S.S.G. § 3B1.2(a) or (b) for having only a minor or minimal role in the offense. The district court imposed a fifty-one month sentence. Gómez-Encarnación now appeals his conviction and sentence.

II.

Gómez-Encarnación contends that the district court erred in: (1) denying his motion for acquittal on the basis that the evidence was insufficient to support a conviction, (2) imposing a six-level enhancement for the money laundering having involved the proceeds of drug trafficking, and (3) denying him a reduction based on his having a "minor or minimal" role in the offense. We take each contention in turn.

A.

We review the denial of a Rule 29 motion for acquittal de novo. United States v. Acevedo, 882 F.3d 251, 258 (1st Cir. 2018). Under such a review, "we must affirm unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt." Id.

Gómez-Encarnación's primary argument is that Polanco's claim that Gómez-Encarnación "gave" him the money rendered the gist of Polanco's testimony necessarily unreliable because the agent who observed the pick-up testified that Trinidad, not Gómez-Encarnación, was the one who physically went to Polanco's car to deliver the money. We do not see that potential inconsistency as sufficient to vacate the conviction. The wiretap, the surveillance, and the agents' testimony directly corroborated Polanco's claim that he arranged to get the cash from Gómez-Encarnación at the place where Gómez-Encarnación resided. While Polanco's testimony that Gómez-Encarnación "gave" him the money, coupled with the agent's testimony that Trinidad physically delivered it to the car, invited fair argument that Polanco was not credible, such an argument fell far short of being so compelling that no reasonable jury could rely on Polanco's testimony in finding Gómez-Encarnación guilty beyond a reasonable *56doubt. There are many ways to "give" money to someone, including having an associate carry the cash from one's home to an individual whom one knows is waiting outside for the cash. The important point on which the agent and Polanco agreed was that Polanco received something outside Gómez-Encarnación's residence after the phone calls arranging the pick-up and before Polanco proceeded to the money transfer business.

Gómez-Encarnación's second argument in support of his challenge to the sufficiency of the evidence-that no agent observed him do anything illegal-carries even less force. There is simply no requirement that a government agent witness the charged criminal act.

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Cite This Page — Counsel Stack

Bluebook (online)
885 F.3d 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gomez-encarnacion-ca1-2018.